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GENERAL LIBRARY
UNIVERSITY OF MICHIGAN.
THE
Hagerman Collection
OF BOOKS AELATING TO
MISTORY AND POLITICAL SCIENCE
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BOUQHT WITH MONEY PLAOED BY
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IN THE HANDS OF
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Professor Charles Kendall Adams
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IN THE YEAR
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1883.
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​B 36.
Slavery,
ITS
UNCONSTITUTIONALITY.
Hom
= ( قمری
AN
ARGUMENT
ON THE
UNCONSTITUTIONALITY OF SLAVERY,
EMBRACING AN
ABSTRACT OF THE PROCEEDINGS
OF THE
NATIONAL AND STATE -CONVENTIONS
ON TIIIS SUBJECT.
By G. W. F. MELLEN.
Shall I hold another in slavery, when I myself would be free!
BOSTON:
PUBLISHED BY SAXTON & PEIRCE.
1841.
Entered according to act of Congress, in the year 1841,
BY G. W. F. MELLEN,
in the clerk's office of the District Court of Massachusetts.
017221115,
Ꭼ .
Ꮲ Ꭱ
C
E
F A
In presenting the public with the present vol-
ume, we are aware it involves some presumption,
as we are not connected with the learned profes-
sion of the law; but none, either abler or otherwise,
having undertaken the task, we have ventured to
raise our sail, and, with what skill and favorable
winds we could command, have endeavored to
steer our bark into the desired haven. We are
aware that Mr. Alvan Stewart, of New York, with
his great mind, has preceded us in the discussion
of the constitutional question of the rights of slave-
holders; but he did not touch the point which
we thought lay at the foundation of this most in-
teresting question ; we have therefore considered
it in a somewhat different aspect. While he sup-
posed, because the States had not by their laws
established slavery, therefore it did not exist, we,
on the contrary, would affirm, that, according to
our Constitution, it is impossible either for congress
HIM
1*
PREFACE.
or the States to establish it ; 'that no man now
is rightfully or legally held in bondage in this
country; that the whole system is unconstitutional;
and that it is in violation of its spirit and letter,
and ought not to be upheld.
· But, knowing such weighty authorities are at -
present opposed to us, we have had to be rather
labored, and to extend our remarks and proofs to a
we have endeavored to give a connected history.
of the proceedings of various public bodies in re-
lation to the question at issue, and have done it
with all the impartiality of which we are ca-
pable, we hope our exertions will not prove una-
vailing to throw light upon a subject which now
seems to be involved in mich darkness and uncer-
tainty, if we can judge from the contrariety of
opinions. we have heard both publicly and private,
TIIN
UU
ferent stand from many distinguished abolitionists.
on this question, and that a good deal of sensitive-
ness has been manifested towards us on account of
it; but, as the facts and arguments adduced in this
work have fully satisfied ourself on this subject, it
is hoped they may not fail to convince others, and
that it will be finally admitted that not only the
States, but the United States, and the various
L
PREFACE.
PREFACE.
.
courts of the land, all have authority over the sub- .
ject, when the question arises in their several ju-
risdictions. We have considered the distinctive
character of our government arises from the fact
a man cannot be subjected to arbitrary authority in
this country ;, and from this alone it deserves the
appellation “ free.” We take it for granted, it can-
not be supposed that individuals under a govern-
ment have a greater authority over other individu-
als under the same government than the govern-
ment itself,
But, while we have, as we think, most clearly
demonstrated these as truths, and that every indi-
vidual person is by the Constitution allowed his
inalienable rights, and the free exercise of them,
we should also hold, even if the Southern States
interest with then, it would be our duty, and
the duty of every other man, to lift up his voice
against the oppression that is there exercised,
on the same grounds that we should enter a
stranger's house from which proceeded the cry of
help and murder. Is there one of us, in the North-
ern States, who should see one man beating an-
other in the street, would not endeavor to know
the cause of the assault, and, if in our power, pre-
vent its continuance; or, if we should see one
PREFACE.
1
flying from an infuriated man, should we not en-.
deavor to render succor and assistance to him who
is fleeing? And when we see and know that
thousands and tens of thousands of our colored
brethren have already fled, and are continually
fleeing, for succor and for aid to shield them from
the iron yoke imposed upon them in the Southern
States of this Union, and when we know their cry
is constantly ascending for assistance, can we,
ought we, to fold our arms in indifference? Let
him who has never wanted, and never expects to
want, the sympathies and aid of his fellow-men
answer in the affirmative, and act accordingly.
Knowing, however, our own weakness and our
own wants, we must act in a different manner.
But we affirm, according to our present arrange-
ment, the Southern States can in no light be con-
sidered as foreign nations to us: our destiny is
bound up with theirs, and we cannot hope to
escape unless we dissolve our present connection.
Are we liable every moment to be called upon to
shoulder our muskets, to defend the South from
any danger that may arise either from external
foes, or internal insurrections, without having any
interest to prevent, if possible, our being thus
called upon ? Has a foreign nation the same right
to call upon us for such a purpose ? We cannot
(
PREFACE.
..9
suppose any one will answer in the affirmative;
neither could we have believed, had it not been
done by so many individuals, that a single person
could have been found, that would have, admitted
it possible any one could, in this country, be
driven about hither and thither, whether as sol-
diers or as slaves, without being able to ask the
reason why, or without having the right, in any.
way or in any manner, of preventing such being
the case. We think our fathers have not left us
such a legacy; on the contrary, they not only
took better care of their own rights, but took bet-
ter care of the rights of their posterity; and, it is
the purpose of the following pages to show how
and in what manner they have done it.
If we are successful in convincing this nation,
or rendering any help to convince it, that there is
and can be no legal' slavery in this country under
our present Constitution, as we ourself are con-
vinced there can be none, 'we shall thank God and
take courage. We therefore humbly dedicate
this book to the people of the United States;
and, although it has been written in hours snatch-
ed from business and relaxation, and its literary
merits may be objectionable, we hope the ideas
will be pondered and considered, and that we shall
not rush blindfolded into slavery to our own
. 10
PREFACE.
:
destruction, and to the destruction of the hopes
of the great and good who have desired the lib-
erty and happiness of mankind.
We would however observe, that in any thing
we may say in the following pages, we hope no
one will suppose that we would not be as careful
of State rights as the most jealous person, whether
in or out of the abolition ranks; but we have no
sympathy with those who are so sensitive with
regard to them on some points, and yet pay no sort
of regard to them when certain other points are
under consideration.
We will take this opportunity to thank Mr.
Coflin, ånd Mr. Snelling, of the State Library, for
their politeness in allowing us the examination of
such books under their charge as we wished.
G. W. F. MELLEN.
CONTENTS..
CHAPTER I.
A general Statement of the Question, - ....... 13
CII APTER II.
Observations made by those engaged in the Revolutionary
War, - - - - - - - - - - - - - - - 36
CHAPTER III.
The Argument derived from the Declaration of Indepen-
dence, the Confederation, and the Constitution, • - - - 51
CII A PTER IV.
Quotations showing the Character of the People who came
to settle the Country, - - - - - - - - - - - - - 90
CII APTER V.
The Proceedings of the National Convention, -... - 104
CII APT ER VI.
Quotations from the Federalist, - ---... -- - 124
- CHAPTER VII.
Extracts from the Proceedings in the Convention of the
State of Massachusetts, - - - - - • - - - - r - 151
CHAPTER VIII.
Extracts from the Debates in the Convention of the State of
New York, - - - - - - - - - - - - - - - , 173
CONTENTS.
CHAPTER IX.
Extracts from the Proceedings in the Convention of the
State of Virginia, on the adoption of the Federal Consti-
tution, - - - - - - - - - - - - - - - - - - 183
CHAPTER X.
Extracts from the Proceedings in the Convention of North
Carolina, • - - - - - - - - - - - - - - - - 262
CHAPTER XI.
Extracts from the Observations made in the Convention of
Pennsylvania, - - - - - - - - - - - - - - - - 294
. CHAPTER XII.
· Extracts from Mr. Wirt's Life of Patrick Henry, - - - - 320
CHAPTER XIII.
Extracts from Proceedings of Congress on the Adoption of
the Amendments, - - - - - - - - - - - - - - 344
CHAPTER XIV.
The Proceedings of Congress on the Presentation of the
Petition by the Society of Quakers for the Abolition of
Slavery, - - - - - - - - - - - - - - - - - 366.
CHAPTER XV.
Arguments derived from the Decisions of the Court of the
United States, - - - - - - - - - - - - - - - - 380
CHAPTER XVI.
Conclusion, -
-
-
-
-
-
-
-
-
-
-
-
-
-
-
- -
423.
APPENDIX.
Resolutions passed at the Green Dragon, - - - - - - - 437
Decision of the Court of Error and Appeal in Pennsylvania, 439
THE
UNCONSTITUTIONALITY
OF
SLAVERY.
CHAPTER I.
A GENERAL STATEMENT OF THE QUESTION.
.
The idea having been advanced in some of our
most prominent political and religious journals, and
also in various addresses made to the public by
members belonging to both political parties, ? that
no person out of the slave States had any thing to
do with slavery;2 that its abolition belongs solely
to the States in which it exists; that we have
nothing more to do with it than if these. States
were foreign nations, and that we violate the law
of nations by meddling with it; 3 and that; if these
States were not of our own household, the pro-
ceedings of the abolitionists would be a cause of
war; and, further; (the doctrine is advanced by
some,) that slavery was by the Constitution guar-
anteed to the South, it is our purpose to con-
Democratic Address, delivered in Baltimore in 1838. Mr.
Webster's Address, delivered in Richmond, October, 1840. Ather-
2 Boston Quarterly Review, No. II. p. 242; also No. XIII. p. 95,
3 Boston Quarterly Review, No. II. p. 252.
4 Christian Examiner, Third Series, No. XIII. 1837, p. 84, &c.
14
STATEMENT OF THE QUESTION.
sider these several subjects, and see how far they
can be true, and if in truth it be possible we can
arrive to any such alarming conclusions. While,
we say, we will make the above inquiries, we will
also see whether, on the contrary, while this
system was found, like other evil practices that
sometimes gain a foothold on the affections of a
people, our fathers did not do as much as they
thought in their power to put an end to the sys-
tem, and leave it not only in the power of the
government to destroy it, but absolutely, and in
fact, by the system they adopted, they did not
place it in the power of every individual, who
should be maltreated or restrained in his liberty,
to get redress of his grievances through the in-
strumentality of the courts; so that, if proper
steps had been taken, no man need to have been
retained in slavery since the adoption of the Con-
stitution; in truth, that there is no legal or rightful
slavery in the United States, nor can there be, by
any powers either in the State or United States
government; much less is there any constitutional
power in the individual, to make a slave of any
person whatever; that, unless for crimes committed
against the laws of society, and which laws must
have an equal bearing upon all, a man cannot be
restrained in his life, liberty, or pursuit of happi-
ness; and, consequently, all the laws made by the
different States to secure man in slavery are null
and void, and, if carried into execution, are in 'di-
rect violation of the Constitution of our country.
To say our fathers guaranteed slavery to the
STATEMENT OF THE QUESTION.
15
1
.
South, is advancing a doctrine so opposed to their
professed attachment to liberty, and to the doc-
trines advanced in the Declaration of Indepen-
dence, and to the professed reasons which most of
them gave for coming to this country, and would
involve them in such a labyrinth of hypocrisy, that
it seems as if no individual would be willing to
make himself obnoxious to the charge, and that
he would pause for a long time before he would
admit such a doctrine, or would suffer it to gain
publicity. To say our fathers -- the persons who
came over in the Mayflower, that Penn, that the
Germans -- all left their shores, either openly avow-
ing, or, by their subsequent practice, showing,
they came away to avoid the tyranny of their
own countries, and came to this continent, to
these shores, with the express purpose of here
enjoying greater freedom than at home, and of
establishing, in this then wilderness, the basis of
freer institutions than they were living under in
their own country, but, at the same time, beneath
this fair exterior they were entertaining doctrines
which, if carried out, (and they have been carried
out,) would introduce a tyranny as much worse
than any existing in the several lands from which
they came as can be well conceived; or that our
fathers, who took an active part in our revolution-
ary struggle, should have played the same game,-
should, while they were advancing the “self-
evident truths," "that all men were created
equal," that they "had an inalienable right to life,
liberty; and pursuit of happiness," and thereby
16
STATEMENT OF THE QUESTION.
touching that cord in every noble and generous
mind, and which, if properly struck, will be sure
to vibrate in union with the master hand, and
which did call forth the treasures and assistance
of a Lafayette, and caused a Kosciusko to bleed ;
that these men, who advanced and maintained
these principles before the world, did it only that
they might gain the world's assistance and its
applause, while they had determined, within them-
selves, to violate every principle they professed, or
only that they might be better able to impose on
their brother man a tyranny equal in cruelty to
any the world had ever witnessed, -is advancing
a doctrine so abhorrent, we can scarce believe, had
it not been asserted, it could have been entertained
a moment. And yet what is it but saying all
this, when we allow it to be understood, without
any qualification, that our fathers, the moment it
was in their power to frame laws to govern the
country to which they had resorted, should, in
contempt of all their previous professions, place
upon a permanent footing, and that with malice
prepense, a system of which they at least made a
show, on account of its barbarity and the manner
it was imposed upon them one cause of war?
Such a judgment seems too contrary to all of our
preconceived notions of their integrity, to be for a
moment admitted ; and, if there was any thing in
their actions that would at all give countenance to
such a construction of their conduct, some excuse
ought to be found, some reason, either good or
apparently so, which may have appeared, to their
STATEMENT OF THE QUESTION.
17
minds, to justify them in a course so opposite to
what might have been expected.
It is not our intention, however, to advance the
idea that all the men of that age were perfect.
That there were men who would not have been
willing to act in such a hypocritical nianner; and
that there were many who did use their utmost
influence to fasten upon the country this system
of abominations, and, on account of their supposed
interest involved, were willing to do any thing,
provided this should be effected; and that many,
after our independence was gained; took no
active interest in it, and would have been very
glad had no change taken place, but, after it
did take place, threw in what weight they could
to prevent any alteration in their domestic con-
cerns, - we have no doubt. And that such per-
sons did effect much, and did, perhaps, prevent
a general emancipation from slavery throughout
the United States at the time, there can, perhaps,
be no doubt; neither can there be any doubt that,
through their solicitations, and the honest fears of
others, as to the consequence of having in their
midst, without more than ordinary restraint, a
comparatively ignorant, barbarous, and heathen
people, the subject of emancipation was kept in
the back-ground, or involved so mysteriously as to
be left, by those who would have taken a different
course, to future generations, to correct any error
they may have committed ; and we find that those
· who took the most active part in that struggle,
and by whose influence it was in the main carried
2*
18
STATEMENT OF THE QUESTION.
.
on, were thwarted and prevented from doing as
they would. Having gone through one struggle,
and being, as they themselves say, advanced in
years, they left what of the work they had not
finished to those who might come after them.
But, after all, although they did not proclaim a
general emancipation to the colored race, yet we
think they left no word by which slavery could
be justified or maintained in the Constitution of
our country; and that, so far as that instrument is
concerned, it cannot be supported. This, we are
aware, is an assertion contrary to the expressed
opinion of many distinguished men. But, when
a guaranty is given, we think there ought to be
something more than inuendoes to maintain it;
that the subject to be guaranteed should be ex-
pressly stated; that nothing should have been left
to inference; that, in a case so important, a clear
understanding should have been entertained; there
should have been leſt no doubt on the subject;
and yet, in all of the public documents that were
given to the American people and to the world,
the subject of slavery is not mentioned but with
reprobation. The nation at large were, no doubt,
opposed to slavery. No one, in that age, dared to
assert slavery was a blessing; no one seemed to
think it was so; but every demonstration that was
made in regard to it was of a contrary character.
The trade has been termed, at least when con-
ducted on a foreign shore, piracy; and their ab-
horrence of it has been shown, in a greater or less
degree, in the various laws that have been made on
STATEMENT OF THE QUESTION.
19
the subject. We must admit, however, they suf-
fered, against the consent of the most active men
in the revolutionary struggle, this piracy to con-
tinue twenty years after our present government
was established, and, by so doing, laid the foun-
dation of the troubles we now experience; though
the very manner they worded this permission
shows they did not feel over-anxious to leave on
record any justification, on their part, of its being
done; and that the present ideas in regard to it
are but of late growth. The idea of its being a
pear to have entered their heads. It was solely
the want of laborers in the more southern States
that induced them to consent to have it contin-
ued, and not because they had any sympathy for
the system. It was urged that the white man
could not work on the rice plains of the South;
and, unless there could be a colored population
there, they would have to remain a wilderness;
and that the African would be better off in this
country than in his own. These ideas, with the
fear they should not be able to maintain their lib-
erties and the best good of the country without a
union of the States, induced them to consent to its
temporary continuance. Its perpetuation, how-
ever, was not thought of, saving, perhaps, in the
while it was but a suckling.
But it is asked how it is, then, that that which
was considered so great an evil, at the time of
which we are speaking, should in so short a time
STATEMENT OF THE
ESTION.
become to be considered of so much utility that it
must not be spoken of but with approbation, and
that the statesmen in both of the great political
parties of our country so universally uncover their
heads in its presence, and bow down to it as to 'a
god from whom they have received their very
existence.
Mr. Birney, in his letter to the Hon. Mr. Elmore,
of South Carolina, in answer to certain inquiries
made of him respecting the intentions and pros--
pects of the abolitionists of the North, states
the case in a clear and distinct light. He says,
.
* The ascendency that slavery has acquired and ex-
ercises, in the administration of the government, and the
apprehension now prevailing among the sober and intel-
ligent, irrespective of party, that it will soon overmatch
the Constitution itself, may be ranked among the events
of the last two or three years that effect the cause of the
abolitionist. The abolitionists regard the Constitution
with unabated affection. They hold in no common
veneration the memory of those who made it. They
would be the last to brand Franklin, and King, and Mor-
ris, and Wilton, and Sherman, and Hamilton, with the
ineffable infamy.of attempting to engraft on the Consti-
tution, and therefore to perpetuate, a system of oppres-
-sion in absolute antagonism to its high and professed
objects, one which their own practice condemned ; and
this, too, when they had scarcely wiped away the dust
and sweat of the Revolution from their brows.
“Whilst abolitionists speak thus of our constitutional
fathers, they do not justify the dereliction from principles
into which they were betrayed, when they imparted to
the works of their hands any power to contribute to the
STATEMENT OF THE QUESTION.
21
continuance of such a system. They can only palliate
it, by supposing that they thought slavery was already a
waning institution, destined soon to pass away. In their v
time, (1787,) slaves were comparatively of little value,
there being then no great slave staple (as cotton is now)
to make them profitable to the slaveholder.
“ Had the circumstances of the country remained as
they then were, slave labor, always and every where the
most expensive, would have disappeared before the com-
petition of free labor. They had seen, too, the princi-
ples of liberty embodied in most of the State Constitu-
tions ; they had seen slavery utterly forbidden in that of
Vermont, instantaneously abolished in that of Massachu-
setts, and laws enacted in the other New England States,
and in Pennsylvania, for its gradual abolition. Well might
they have anticipated that justice and humanity, now
starting forth with fresh vigor, would, in their march,
sweep away the whole system ; more especially as free-
dom of speech and the press, the legitimate abolisher, not
only of the vice of slavery, but of every other that time
should reveal in our institutions or practice, had been
fully secured to the people. Again, power was con-
ferred on congress to put a stop to the African slave-
trade, without which it was thought at that time to be
impossible to maintain slavery as a system on this con...
tinent, so great was the havoc on human life. Authori. ,
ty was also granted to congress to prevent the transfer of
slaves, as articles of commerce, from one State to an-
other, and the introduction of slavery into the Territories.?
All this was crowned by the power to prevent the admis-
1 The cultivation of cotton was almost unknown in the United
States before 1787. It was not till two years aſterwards that it be-
gan to be raised and exported. (See report of the secretary of the
treasury, July 29, 1836.) .
2 The following is the opinion of the late Chief Justice Jay as to
this part of the constitutional question. It is contained in a letter
02.
STATEMENT OF THE QUESTION.
sion into the Union of any new State, whose form of gov-
ernment, was repugnant to the principles of liberty set
forth in the Constitution of the United States. The faith-
ful execution by congress of these powers, it was reason-
ably enough supposed, would, at least, prevent the growth
of slavery, if it did not entirely remove it. Congress did,
at the same time, execute one of them, — deemed then
the most effectual of the whole, but, as it turned out,
the least so."
from him to the venerable Elias Little, and can be added to what
has been said and written on the subject of slavery:
"Nov. 17, 1819. I concur in the opinion it ought not to be intro-
duced, nor permilled in any of the new States; and that it ought to
be gradually diminished and abolished in them all.
“To use the constitutional authority of congress to prohibit the
migration and importation of slaves into any of the States does
not appear questionable.
. “The first article of the Constitution specifies the legislative
powers committed to congress. The ninth section of this article
has these words: "The migration or importation of such persons as
any of the now existing States shall think proper to admit, shall not
be prohibited by the congress prior to the year 1808; but a tax, or
duty, may be imposed on such importation not exceeding ten dollars
for each person.
"I understand the sense and meaning of this clause to be, that
the power of the congress, although competent to prohibit such mi-
gration and importation, was not to be exercised with respect to the
THEN existing Slates, and them only till the year 1808, but that con-
gress were at liberty to make such prohibitions as to any new State
which might in the mean time be established. And, further, that,
from and after that period, they were authorized to make such pro-
hibition as to all the States, whether new or old.
“Slaves were the persons intended. The name slaves was
avoided, on account of the existing toleration of slavery, and its
existing discordancy with the principles of the Revolution, and
from the consciousness of its being repugnant to those proposi-
tions in the Declaration of Independence: 'We hold these truths to
be self-evident, — that all men are created equal; that they are en-
dowed by their Creator with certain inalienable rights; and that
among these are life, liberty, and the pursuit of happiness.'
- STATEMENT 23
HIV
OF THE QUESTION.
He then goes on to state that the interdiction of
the African slave trade did not diminish the trade
itself, or mitigate its horrors. It simply transferred
from Africa to America "its profits from African
princes to American farmers.” He doubted if
slavery would have extended over so large a space
as it now does, if the trade had not been inter-
dicted; for the cheap rate at which slaves could
have been imported would have prevented the
rearing them on American soil; and, if the internal
commerce could be restricted, slavery would soon
die of itself. They could not maintain it on ac-
count of the competition of free labor. And the
not using by congress of the power it possessed, or
rather to the unfaithful application of their power
to other points, on which it was expected to act for
the limitation and extirpation of slavery, that the
hopes of our fathers have not been realized.
Slavery has advanced to its present audacious posi-
tion by steps at first gradual, and for a long time
almost unnoticed, afterwards by intimidation and
corruption, up to the time of the “Missouri com-
promise," by which the nation was defrauded of
its honor; and that, up to this time, slavery was
looked upon as an evil that was to yield to the ex-
panding and enlightened influences of our Consti-
tution, principles, and regulations.
He then proceeds:
" It has already been said we have been brought
into our present condition by the unfaithfulness of con-
gress, in not exerting the power vested in it, to stop the
domestic slave-trade, and in the abuse of the power of
1
24
STATEMENT OF THE QUESTION.
admitting new States into the Union. Kentucky made
application, in 1792, with a slaveholding Constitution in
her hand. With what a mere technicality congress
suffered itself to be dragged into torpor! She was part
of one of the original - States, and therefore entitled to
all their privileges.”
It should have been entitled to all the curses
that the system of slavery necessarily imposes
upon a community that upholds it.
6 One precedent established, it was easy to make
another. Tennessee was admitted in 1796, without
scruple, on the same ground.
- The next triumph of slavery was in 1803, in the pur-
chase of Louisiana, acknowledged afterwards, even by
Jefferson who made it, to be unauthorized by the Consti-
tution, and in the establishment of slavery throughout its
vast limits, actually and substantially under the auspices
of that instrument which declares its only object to be
to form a more perfect union, establish JUSTICE, insure
DOMESTIC TRANQUILLITY, provide for the common defence,
promote the general welfare, and secure the blessings of
LIBERTY to ourselves and our posterity. .
6 In this case the violation of the Constitution was suf-
fered to pass with but little opposition, except from
Massachusetts, because we were content to receive in
exchange multiplied commercial benefits and enlarged
territorial limits.
" The next stride that slavery made over the Consti-
- tution was the admission of the State of Louisiana into
the Union. She could claim no favor as part of an
original State. At this point, it might have been sup-
posed the friends of freedom, and of the Constitution ac-
cording to its original intent, would have made a stand.
STATEMENT OF THE QUESTION.
· 25
But no; with the exception of Massachusetts, they hesi-
tated, and were persuaded to acquiesce, because the
country was just about entering into a war with England,
and the crisis was unpropitious for discussing questions
that would create divisions between different sections of
the Union. We must wait till the country is at peace.'
Thus it was that Louisiana was admitted without a con-
troversy.
“ Next followed, in 1817 and 1820, Mississippi and
Alabama, admitted, after the example of Kentucky and
· Tennessee, withoút any contest.
"Meantime, Florida had given some uneasiness to the
slaveholders of the neighboring States; and, for their
accommodation chiefly, a negotiation was set on foot by
the government to purchase it.
“Missouri was next in order, in 1821. She could
plead no privilege, on the score of being part of one of
the original States; the country, too, was relieved from
the pressure of her late.conflict with England ; it was
a calm and dispassionate consideration to the claim of
slaveholders to add props to their system by admitting
indefinitely new States to the Union. Up to this time
the Evil of slavery had been almost universally acknowl-
.edged and deplored by the South, and its termination
(apparently) sincerely hoped for. By this management,
its friends succeeded in blinding the confiding people of
the North. They thought, for the most part, the slave-
holders were acting in good faith. It is not intended by .'
this expression that the South had all along pressed the
admission of new States simply with the view to increase
its own relative power. By no means: slavery had in-
sinuated itself into favor because of its being mixed up.
influence on the government was neither suspected nor
26
STATEMENT OF THE QUESTION.
dreaded. But on the Missouri question there was a fair
trial of strength between the friends of slavery and the
friends of the Constitution. The former triumphed, and
by the prime agency of one l whose raiment, the re-
mainder of his days, ought to be sackcloth and ashes,
because of the disgrace he has continued on the name of
his country, and the consequent injury he has inflicted on
the cause of freedom throughout the world. Although
all the different administrations had, in the indirect man.
ner already stated, favored slavery, there had not been,
on any previous occasion, a direct struggle between its
pretensions and the principles of liberty engrafted on the
Constitution. The friends of the latter were induced to
believe, whenever they should be arrayed against each
other, that theirs would be the triumph. Tremendous
error! Mistake almost fatal ! The battle was fought.
Slavery emerged from it unhurt, her hands made gory,
her bloody plume still floating in the air, exultingly
brandishing her sword over her prostrate and vanquished
enemy. She had now all for which she had fought.
Her victory was complete, --THE SANCTION OF THE
NATION WAS GIVEN TO SLAVERY!
“Immediately after this achievement the slaveholding
interest was still more strongly fortified by the acquisi-
tion and the establishment of slavery, there, as it had
already been in the Territory of Louisiana. .
“ The Missouri triumph, however, seems to have ex-
tinguished every thing like systematic or spirited oppo-
sition, on the part of the free States, to the pretensions
of the slaveholding South.
6 Arkansas was admitted but the other day, with
nothing that deserves to be called an effort to prevent it,
although her Constitution attempts to perpetuate slavery
Henry Clay.
STATEMENT OF THE QUESTION.
by forbidding the master to emancipate his bondman
without the consent of the legislature, and the legislature
without the consent of the master. Emboldened, but
with the people of the free States, the slaveholders are
beginning to throw off their disguise; to brand their
former notions about the evil, political and moral,' of
slavery as folly and delusion;'1 and, as if to make
assurance doubly sure,' and to defend themselves for-
ever, by territorial power, against the progress of free
principles and the renovation of the Constitution, they
now demand openly - scorning to conceal that their
object is to advance and establish their political power
in the country--that Texas, a foreign state, five or six
times as large as all New England, with a Constitution
dyed as deep in slavery as that of Arkansas, shall be
added to the Union.”
Thus we have given Mr. Birney's views of the
manner slavery has advanced in the country, be-
cause we think they are plain, explicit, and to
the point, and show how slavery has advanced by
successive steps from being considered the worst
of evils to that of the greatest good; and, by show-
ing this, we shall be able more clearly to perceive
why our fathers did not in any manner guarantee,
lic acts; but, on the contrary, as we shall attempt
to prove, so far as they did go, their acts went to
break up the whole system, or provide for its
being so broken up; and, in fact, if advantage had
been taken of their words by our colored. popula-
1 John C. Calhoun, in the senate of the United States, made use
of this expression.
28
STATEMENT OF THE QUESTION.
tion, slavery would have ceased to have existed at
the time of the declaration of our independence;
and we think it can now be sufficiently shown the
system has never been by law established, but that
ways have been provided for its final extirpation.
Such being the case, nothing but the supineness
of those, both white and colored, who were and
are interested, has perpetuated it in our land..
In order to substantiate these assertions, it may
be thought proper and necessary, since so much
has been said and admitted to the contrary, to
show on what they are founded, and how such a
position can be maintained; and, in order so to do,
it may be necessary to go back in our history, to
ascertain what were the principles not only of the
men who framed the instruments to which refer-
ence has been made, but also of their predeces-
sors. Having the biography of so many of the
men who first came to this country, belonging to
our own race, as well as the history of the time
of their first landing to the time spoken of, we can
perhaps come to a just conclusion.
It would hardly be necessary to assert all of our
fathers had a clear conception of the value of, or
even desired, universal liberty, - that they were all
pure, honest, and true men; consequently we will
not, however much we might wish, and we shall
not, attempt to maintain such a proposition; or that
men did not come to this country with the avowed
purpose and express desire, not only of making
money in the ordinary modes of traffic, but that
- many came for the very purpose of trafficking in
· STATEMENT OF THE QUESTION.
29
slaves, and of accumulating property through their
agency; and that this object and design was kept
in view, either among themselves or their de-
scendants, from the time of the first introduction
of slavery till the adoption of the Constitution;
and that their influence was felt through these
successive periods, and manifested itself in the
acts of the men who promulgated the Declaration
of Independence, who formed the confederations
and, finally, of those who adopted the Constitu-
tion. We have seen how that influence has been
extended from that time to this, and that by false
arguments and false reasonings they have pro-
duced the results we now witness."
But that the great body of the people who came
to this country, either before the declaration of
independence or since, or of those who took a part
in the proceedings of the revolution, were men
who favored slavery, we think cannot for a mo-
ment be admitted. Perhaps it may not be neces-
sary to quote from the principal men of that day,
or to go into a long and labored argument to
show that they were on the side of freedom, be-
cause it would seem like arguing a point that
every one admitted, and that it was too plain and
palpable on the face of our history to be denied;
and perhaps it may be said it is not denied; but
yet, when respectable journals, and men in high
authority, say our revolutionary fathers guaranteed
slavery to the South, or left it in such a manner,
that, while each and all of the different States were
bound to suppress, or help suppress, an insurrec-
LU
3*
·30
STATEMENT OF THE QUESTION.
tion that might occur among the slaves, they
put it out of their power to say or do any thing
against its continuance, or left no way by which
it could be brought to an end by the courts, we
cannot conceive it in any other light than the
admission that, while the men of that day made
the strongest professions in favor of liberty, they
were, at the same time, preparing the country for
the vilest system of bondage; in other words,
making them the greatest of hypocrites,-a char-
acter we do not think they deserve.
It is certainly evident our Pilgrim fathers, with
the advice of Robinson, came here to enjoy
their civil and religious privileges, and that they
did introduce into their government these great
principles. Although, in the course of time, many
of these principles may have been disregarded, as
in the persecution of Roger Williams and the
Quakers, and in some of their number holding
slaves, yet, after proper discussion, and seeing the
bearing to which their actions tended, they gave
up the contest; and the apparent result of every
trial of this kind fixed deeper, broader, and
stronger, in the minds of our fathers the love of
-- liberty; so that no persecution of the same kind
has ever taken place a second time. However
much individuals might have wished a different
order of things, or however much they may have
been mistaken in any of their works, no sooner
was the result of their actions, understood by the
general mass, that the great doctrine of general
or individual liberty was endangered, than they
STATEMENT OF THE QUESTION.
LU
at once rallied with all their powers of oppo-
sition, and caused the obnoxious measures to
cease. The refusing of civil privileges, except-
ing to church members, was one of these laws;
but, as soon as it was found to interfere with
individual liberty, it was done away. Penn,
with his followers, certainly entertained the
same notions, and came here for a similar pur-
pose.
The German population, also, that settled in
New York and Pennsylvania, entertained, in a
greater or less degree, the same idea :. this we
think is evident in the attachment which the
German population in the State of Pennsylvania
still manifest towards what is called the republi-
can party in the United States. Wherever and
whenever they become convinced that one party,
rather than the other, embodies the republican
principle, there they are sure to side ; and, in
fact, it is appealing to this principle alone, and
convincing them that the persons who would
obtain office will maintain their sentiments, that
any have the most distant hope of success. 1
Mr. Haynes, in a speech made in the senate of
the United States, January 21, 1836, said :
6 The people whom I represent are the descendants
of those who brought with them to this country, as the
most precious of their possessions, an ardent love of
liberty ; and, while that shall be preserved, they will
1 The result of the past election, we cannot but think, was in
part caused by appealing to this very principle.
32
STATEMENT OF THE QUESTION.
always be found manfully struggling against the consoli-
dation of this government as the worst of evils.” .
The State of North Carolina was settled for the
most part by Quakers, and the people of that State
have been, from the beginning, less attached to
slavery, if we can judge from the proceedings of
their public bodies, than most of the Southern
States. At the time of the formation of the Con-
stitution their delegates received no instructions
on the subject of slavery, while those from South
Carolina and Georgia did. The delegates from
this State were left to act according to their own
judgment on the subject, and it may be it was
through the influence of the Quakers they were
so left.
Now while it may not be questioned that many
came to this country as needy adventurers, and for
the simple purpose of making money, let the mode
of making it be what it might, yet there can be
no question but that a great proportion came here,
though they may have wished to have bettered
their condition, for the purpose of avoiding the
tyranny practised in the old world. It was un-
comfortable to them, and they wanted to live in a
situation where they should not be under so much
restraint; and, considering the smallness of the
island of Great Britain, it may be presumed that
those who came frorn thence in a great measure
sympathized with one another in this thirsting
after a greater civil liberty than they there en-
joyed; and though they separated far and wide
when they arrived on these shores, yet the same
STATEMENT OF THE QUESTION.
33
spirit animated them, and the same thoughts filled
their breasts. In all their controversies with the
· mother country, this spirit was ever uppermost :
it manifested itself at the time of William and
Mary, of Chromwell ; and finally it broke out, in
its distinctive character, at the time of the revolu-
tion. At this time it had gained, if we may so
speak, a. form and substance. The repeated dis-
cussions on the subject throughout the colonies,
for a series of years, had matured and brought out
the idea in prominent relief. The idea this land
should be the land of the free, that this great con-
tinent should and ought to be governed by impar-
tial laws, and not by thať system of favoritism,
tyranny, and misrule, that was so general through-
out the kingdoms of Europe, was fully developed.
They meant to establish a government of peace
and good-will to all men, and where every one
might “ sit under his own vine and fig-tree with-
out any to molest or make afraid." We find them
in all of their proceedings, however much they
may have been opposed by individuals, or how-
ever often they may have been prevented in so
doing, laboring to carry out this idea to its fullest
extent; and it is evident that one of the obstacles
in the way of obtaining this universal liberty was
the trade and traffic in slaves. They felt its injuri-
ous effects; and Mr. Jefferson made it one of the
grounds of complaint in the draft of the Declara-
tion of Independence --and it was approved by the
committee who were appointed to make this draft-
that Great Britain should have forced these people
· 34
· STATEMENT OF THE QUESTION.
upon them in the manner she did, against the
remonstrances and wishes of the colonies. But
as certain individuals in this country had entered
into the traffic, and many had what they consid-
ered their property in these people, interest was
made to have that clause in the Declaration struck
out, and it was done. But the great principles
that animated them still remained embodied in
the instrument; and, the moment it was adopted ·
by this country, every slave .was free; and such
undoubtedly must have been the understanding
of the men who promulgated it, unless they
should be accused of the want of understanding
the meaning of the words they had used. Could
the men of that age use the languages 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," without being aware, if the negro was
a man, he must be included ? We think not. No
exception was made to him, and his situation was
fully understood by the man who wrote these
words, and by the people who adopted them as
their own; and the only cause why the negro did
not receive at that time universal freedom through-
out the States was, as we believe, because they
had no champion among their own number to
assert and make known their rights, and bring
their cause before the mind of the public. Cer-
tain it was, the men of that age expressed them-
selves openly and unequivocally, and we humbly
think it was owing to their not being seconded
STATEMENT OF THE QUESTION.
35
by our colored friends, they did not succeed in
their wishes. 1 But a supposed interest, joined with
a real or pretended claim of others, of the conse-
quence of freeing so many in their midst who had
just come from a heathen land, ignorant, as they
supposed, or pretended they were, of the ideas of
civil liberty, and hearing nothing from this race to.
the contrary, they were prevailed upon to pass
over the subject in silence, though they did not
and would not give up the principle which, if- car-
ried out, would cause the freedom of every man
in our land. As an evidence of this, we find that
slavery, in those States where the whites greatly
overbalanced the colored people, was immediately
or prospectively abolished, and the most prominent
men of those days took an active part in having
it done.
General Warren, in his address on the 6th of March, 1775,
only one hundred and nine days before his death on Bunker Hill,
delivered in the Old South Church, on the anniversary of the cel-
ebrated Boston Massacre, gave utterance to the following senti-
ments: “That personal freedom is the natural right of every man,
and that property, or an exclusive right to dispose of what he has
honestly acquired by his own labor, necessarily arises therefrom,
are truths that common sense has placed beyond the reach of con-
tradiction. And no man, or body of men, can, without being
guilty of flagrant injustice, claim a right to dispose of the persons
or acquisitions of any other man, or body of men, unless it can be
proved that such a right has arisen from some compact between
the parties, in which it has been explicitly and freely granted."
CHAPTER II.
OBSERVATIONS MADE BY THOSE ENGAGED IN THE .
REVOLUTIONARY WAR, ETC.
As an evidence of the fact of the desire our
fathers entertained for universal liberty, and that
this country should be the land of the free, we
shall quote from some of the state papers put forth
by congress, and from the observations made by
distinguished men of that day. We shall begin
by taking an extract from “A Declaration by the
Representatives of the United Colonies of North
America, setting forth the causes and necessity of
their taking up arms. Directed to be published
by General Washington, upon his arrival at the
camp before Boston, July 6, 1775," Let it be
noted that this was in the first document put forth
to the American army, through the first general
that had been appointed by the congress of the
United States ; and that it must have been ob-
served, at the time, with a great deal of interest,
as marking out, in a manner, the principles which
actuated them. It says, -
“ If it was possible for men who examine their reason
to believe that the divine Author of our existence intend.
ed a part of the human race to hold an absolute property
in, and an unbounded power over, others, marked out,
REVOLUTIONARY FATH
by his infinite goodness and wisdom, as the objects of
a legal domination never rightfully resistible, however
severe and oppressive, the inhabitants of these colonies
might, at least, require from the parliament of Great
Britain some evidence that this dreadful authority over
them has been granted to that body. But a reverence
for our Creator, principles of humanity, and the dictates
of common sense, must convince-all those who reflect on,
the subject, that government was instituted to promote
the welfare of mankind, and ought to be administered for
the attainment of that end."
Extract from a Petition sent by Congress to the King of
Great Britain, July 8, 1775.
“ Your majesty's ministers, persevering in their meas-
ures, and proceeding to impose hostilities for enforcing
them, have compelled us to arm in our own defence,
and have engaged us in a controversy so peculiarly ab-
horrent to the affection of your still faithful colonies,
that, when we consider whom we must oppose in this
contest, and, if it continues, what may be the conse-
quences, our own particular misfortunes are accounted
by us as part of our distress.”
Extract from the Address to the American People by
' Congress, May 8, 1778.
“You cannot but remember how reluctantly we were
dragged into this arduous contest, and how repeatedly,
with the earnestness of humble entreaty, we supplicated
a redress of our grievances from him who ought to have
been the father of his people. In vain did we implore
his protection ; in vain did we appeal to the justice, the
generosity, of Englishmen-of men who had been the
guardians, and asserters, and vindicators of liberty through
a succession of ages -- men who, with their swords, had
38
OBSERVATIONS OF
established the firm basis of freedom, and cemented it
with the blood of heroes. Every effort was vain. For,
even while we were prostrate at the foot of the throne, .
that fatal blow was struck which separated us forever.
Thus spurned, contemned, and insulted, thus driven by
our enemies into measures which our souls abhorred, we
made a solemn appeal to the tribunal of unerring wisdom
and justice ---to that almighty Ruler of princes, whose
kingdom is over all."
Extract from the “ General Orders issued by General
Washington to the Army of the United States, April
18, 1783."
* * * 6 For happy, thrice happy, shall they be
pronounced hereafter, who have contributed any thing,
who have performed the meanest office, in erecting this
stupendous fabric of freedom and empire on the broad
basis of independence, who have assisted in protecting the
rights of human nature, and establishing an asylum for
the poor and oppressed of all nations and religions.
“ The glorious task for which we flew to arms being
accomplished, the liberties of our country being fully
acknowledged, and firmly secured by the smiles of
Heaven on the purity of our cause, and the, honest
exertions of a free people to be free, against a power-
ful nation disposed to oppress them,” &c.
Extract from the answer of General Mifflin, the Pres.
ident of Congress, to the Speech made by General
Washington, on his resigning his Commission, Decem-
ber 23, 1783.
“ Having defended the standard of liberty in this new
world, having taught a lesson to those who inflict and to
those who feel oppression, you retire from the great field
of action with the blessing of your fellow-citizens."
REVOLUTIONARY FATHERS.
Among the foregoing are some of the expres-
sions made by the constituted authorities of the
land, and which must have been issued by at least
a majority of the different bodies who emanated
them. They consequently show the feelings of
a large body of the people, and the reasons and
object that caused them to resist the proceedings
of Great Britain. Whether they were right or
wrong in forcible resistance, is another ques-
tion; we cannot stop here to discuss it, but shall
observe, we doubt whether the army, during a
good portion of that memorable struggle, could
have been kept together, destitute as they fre-
quently were of every comfort and convenience,
were it not they were urged on by their love of
liberty and of the right, and by such appeals as
were made to these inherent principles of our na-
ture. Look at the army at Valley Forge: almost
naked in the dead of winter; almost literally
without food or raiment, or they had such only
as was barely enough to support their animal
wants; nay, they had not enough to satisfy their
hunger, or to shield them from the severity of the
cold. Take the British officer's account, which
we shall shortly give, of Marion's situation; and
Marion said it was often much worse than when
the officer was with him; for they did not always
have enough even of potatoes. Imagine to your-
self an-army of men living in the woods, sustain-
ing themselves upon roasted potatoes, their plates
sheets of bark, their tables logs, and their fingers,
for knives and forks, day after day, month after
40.
OBSERVATIONS OF
month, exposed to the hot sun and chilly damps
of a southern climate ; and all, as is said, for
“liberty ;” and liberty not so much for them-
selves as for posterity. If they were wrong, it
seems, at least, we should be charitable towards
such failings; but yet here is the principle. for
which we contend, --- that it was for liberty, and
liberty alone, that produced our Revolution, and
that this was the mainspring and moving power
that put in action the men of that day; and with-
out it the Revolution could not have been carried
on, nor, so far as human observation can be made,
could it have been successfully terminated; and
that it was not the liberty of the mass, a dişen-
thraldom of the state from a foreign power, an
independency of government, but it was the liberty
of the individual that was sought; it was to shield
him from oppressive taxes, to protect him from
being quartered upon by a brutal soldiery, and
their money from going to build up a rich few in
the island of Great Britain.
In the Introduction to the Biographical Dictionary, compiled
by J. J. Rogers, it is said that Mr. Benjamin West told Mr. J.
Adams, while he was minister to the court of St. James, that the
cause for taxing the colonies without their consent arose from the
fact that the courtiers around George III. urged him to build for
himself a more elegant palace than the one he was then living in,
as it did not compare with the palaces of other kings on the
continent; and when he was informed that there was not money
enough in the treasury to supply his wants for that purpose, (a
million was asked for,) and was told that he might raise the sum
in America, he consented to make the attempt; and the famous
stamp act was passed in March, 1765. His palace was to have
been built in Hyde Park; and Mr. West showed Mr. Adams the
REVOLUTIONARY FATHERS.
41
We do not here quote from the Declaration of
Independence, because we shall have occasion so
often to refer to its language it is not necessary. :.
Gov. Hancock, in a speech made in 1784, in
commemoration of the Boston Massacre, makes
use of the following expressions :
“ Security to the persons and property of the govern-
ment is so obviously the design and end of civil govern-
ment, that to attempt a logical proof of it would be like
burning tapers at noonday to assist the sun in enlighten-
ing the world, and it cannot be virtuous or honorable to
attempt to support a government of which this is not the
great and principal basis; and it is to the last degree
vicious and infamous, to attempt to support a govern-
ment which manifestly tends to render the persons and
properties of the governed insecure. Some boast of
being friends to government: I am a friend to righteous
government, founded on the principle of reason and jus-
tice; but I glory in publicly avowing my eternal enmity
to tyranny.”
Mr. Hancock was chosen president of the con-
vention of Massachusetts, to take into considera-
tion the adoption of the present Constitution, but
did not attend till the last week of the session. It
was said a majority of the convention would be
against the adoption, and that the governor was
with the opposers. "Certain amendments were
proposed to remove the objections of those, who
thought some of the articles deprived the people
site which was there marked out for that purpose. Thus, for the
sake of a palace, George III. lost a kingdom..
* Biographical Dictionary, Art. Flancock.
4*
42
OBSERVATIONS OF
.
of their rights. He introduced those amendments
with great propriety, and voted for the adoption of
the Constitution. His name and influence doubtless
turned many in favor of the federal government.”
It will be seen in the sequel that some of these
amendments, written probably to do away, in part,
the known opposition of Samuel Adams and Mr.
Hancock, had, in fact, special reference to the slaves
in the Southern States; and it will be found that,
with slight amendments, retaining, however, all the
principles contended for, they were finally added to
the Constitution. It was this man, in conjunction
with Samuel Adams, who headed the opposition to
the proposed tyrannical measures of the British
government, who makes objection to the proposed
Constitution, not only on account of his jealousy
for State rights, but on account of its acknowledge
ing slavery at all, and the fear he entertained what
might be the result; and it was the same person
who, when General Washington proposed to Con-
gress to, bombard the town of Boston, while occu-,
pied by the British, and while Mr. H. was presi-
dent of that body, and because it was known most
of his property was invested in real estate there,
" the house resolved itself into the committee of
the whole, in order to give him an opportunity to
give his opinion." 1 - After he left the chair, he
addressed the chairman of the committee of the
whole in the following words:
“ It is true, sir, nearly all the property I have in the
Biographical Dictionary, Art. Hancock.
REVOLUTIONARY FATHERS.
43
world is in houses and other real estate in the town of
Boston ; but if the expulsion of the British army from
it, the liberties of our country require their being burnt
to ashes, issue the order for that purpose immediately."
Samuel Adams, who with Hancock were the
only two individuals the English government
could not pardon for their rebellion in the first
stages of the difficulties, objected to the adoption
of the Constitution as proposed, and stated he could
not give it his support unless certain amendments
were recommended to be adopted. After consul-
tation, amendments were prepared, which were
brought before the convention, and referred to a
committee, who made some inconsiderable altera-
tions, which being accepted, the Constitution was
adopted. Some of these, as we have just re-
marked, were afterwards agreed to as amendments
to the Constitution, and form at present a part of
that instrument. We do not think they were
altogether such as we at the present day should
like, because they are not so distinct as we could
wish; yet they secure the person from excessive
fines, and secure him, before punishment, a trial by
jury, and also freed him from cruel and unusual
punishments. He also objected to the article that
made the State amenable to the courts of the
nation. He thought it would reduce them to mere
corporations.
It is said that, when it was found Messrs. Hancock and
Adams were opposed to the adoption of the Constitution, the people
of Boston held a meeting in the tayern called the Green Dragon,
and passed some very spirited resolutions on the subject, urging its
44
OBSERVATIONS OF
We do not know whether Gen. Marion, of
South Carolina, held slaves ; yet, as he so forcibly
expresses the feelings of the human heart in its
longings for freedom, and shows so distinctly the
cause that could hold together our ill-clad and
bad-provisioned army, and moved them to the
contest of so great a struggle, we cannot forbear
giving an extract from his words.
His expressions occurred on the occasion of the
British sending a flag from Georgetown, South
Carolina, for the exchange of prisoners. The
young officer, after transacting his business, being
invited to dine, was seated on the trunk of a fallen
pine, and one of the men was requested to hand
the dinner; whereupon he drew a quantity of
sweet potatoes from the ashes near by, and, after.
blowing them with his month, and wiping ihem
with the sleeve of his shirt, set them between the
general and the officer on a large piece of bark.
The young man not relishing his food very well,
and not able to refrain from laughing at his recep-
tion in the American general's camp, and at the
bill of fare, observed, after other conversation, he
did not believe it would be easy to reconcile his
feelings to a soldier's life on Gen. Marion's terms,
adoption, and that these proceedings were the occasion of the at-
tempt made by Hancock and Adams to reconcile the principles of
the Constitution to their ideas of liberty and justice; and, having
recommended amendments which would secure the slave his indi-
vidual rights, and the rights of the States, of which they were also
very jealous, they satisfied their consciences to its other provisions ;
and, after these amendments were adopted by congress, they ceased
their opposition.
REVOLUTIONARY FATHERS.
45
"All fighting, no pay, and no provisions but po-
tatoes."
666 Why, sir,' answered the general, s the heart is all ;
and when that is much interested a man can do any thing..
Many a youth would think it hard to indent himself a
slave for fourteen years. But let him be over head and
ears in love, and with such a beauteous sweetheart as
Rachel, and he will think no more of fourteen years
servitude than young Jacob did. Well, now, this is ex-
actly my case. I am in love, and my sweetheart is LIB-
ERTY. Be that heavenly nymph my champion, and
these woods shall have charms beyond London and ·
Paris in slavery. To have no proud monarch driving
over me with his gilt coaches, nor his host of excisemen
and tax-gatherers insulting and robbing, but to be my own
master, my own prince and sovereign, gloriously pre-
serving my own national dignity and pursuing my true
happiness, planting my vineyards, and eating their lus-
cious fruit, sowing my fields, and reaping the golden
grain, and seeing millions of brothers all around me
equally free and happy as myself, — this, sir, is what I
long for.'
66 The officer replied that, both as a man and as a
Briton, he must certainly subscribe to this as a happy
state of things.
"" Happy!' quoth Marion ; “yes, happy indeed ; and I
would rather fight for such blessings for my country, and
feed on roots, than keep aloof, though wantoning in all
the luxuries of Solomon. For now, sir, I walk the soil
that-gave me birth, and exult in the thought that I am
not unworthy of it. I look upon these venerable trees
around me, and feel I do not dishonor them. And when
I look forward to the long, long years of posterity, I
glory in the thought that I am fighting their battles,
46
OBSERVATIONS OF
The children of different generations may never hear
my name, but still it gladdens my heart to think that I
am now contending for their freedom, with all its count-
less blessings.' ..
“Such was the effect of this speech on the young
officer, that, when he returned to his own camp, being
asked by Col. Watson, his commanding officer, what
made him look so sad, he said, 'Why, sir, I have seen
an American general and his officers, without pay, and
almost without clothes, living on roots, and drinking
water; and all for LIBERTY ! what chance have we
against such men !'"1
The young man, whose name was not given in
- the account, “could not rest' till he had thrown
up his commission and retired from the service."
General Wayne, in his letter to General Wash-
ington on the surrender of Stony Point, wrote to
this effect :
6 DEAR GENERAL, — The fort and garrison, with Col.
Johnston, are ours. Our officers and men behaved like
men determined to be free.
“Yours most sincerely, ANTHONY WAYNE.” :
General Washington, in his Farewell Address,
makes use of this expression: “Interwoven as is
the love of liberty with every fibre of your hearts,
no recommendation of mine is necessary to fortify
or confirm the attachment."
“George Bryan, of Philadelphia, who was a delegate
to congress in 1775; and in the State legislature in
1777, planned and completed an act for the gradual
Biographical Dictionary, Art. Marion.
2 Biographical Dictionary, Art. George Bryan.
REVOLUTIONARY FATHERS.
abolition of slavery, and which will remain an imperish-
able monument to his memory."
“ James Clinton, Esq. 1 of New York, is said to have
been characterized by wisdom and patriotism. He was
- a republican in principle and practice.”
" William Henry Drayton, of South Carolina, in his
charge to the grand jury, inculcated the same sentiments
in favor of liberty which were patronized by the popu-
lar” leaders; and, in concluding a charge to the grand
jury in 1776, he makes use of these expressions : "In a
word, our piety and political safety are so blended, that
to refuse our labors in this divine work is to refuse to be
a great, a free, a pious, and a happy people! And now,
having left the important alternative, political happiness
or wretchedness, under God, in a great degree in your
hands, I pray the supreme Arbiter of the affairs of men
so to direct your judgment, as that you may act agreea-
bly to what seems to be his will, revealed in his miracu-
lous works in behalf of America, bleeding at the altar of
liberty.'”
General Horatio Gates, who, it is well known,
was next in command to Washington, when the
Revolution was completed, retired to his plantation
in Virginia, and, after residing there seven years,
moved to New York, and gave freedom to his
slaves. “Instead of turning them to the highest
profit, he made provision for the old and infirm,
while several of them testified their attachment to
him by remaining in his family." 3
We cannot but think it was the views held forth
* Biographical Dictionary, Art. James Clinton.
2 Biographical Dictionary, Art. William Henry Draylon.
3 Biographical Dictionary, Art. Horatio Gales.
48
OBSERVATIONS OF
in some of the preceding quotations, that arrested
the attention of Lafayette, and finally the sympa-
thy of the French nation.
My honored grandfather --- whose name was
George Frost, who resided in the State of New
Hampshire, and who was a member of the con-
gress in 1778-9, and who was also a judge
in one of the State courts, and whose popular-
ity was such, that, in one office to which he
· was elected, there was but one dissenting vote cast
against him, — before the Revolution, held slaves;1
but, as soon as the State government went into
operation, he freely gave them their liberty, be-
cause, according to its bill of rights and its Consti-
tution, which perhaps, from his standing, he may
have had an influence in shaping, they were in-
consistent with the system. Slavery, at that time,
ceased in that State; it was the same in Massachu-
setts; and, sooner or later, it ceased in all of the
States north of Mason's and Dixon's line.
Such, then, being the expressed views of so
many of thºse ho took an active part in our
"He had two, --- one an elderly woman, the other a young man.
The woman, when she was told'she was free, said she had a good
home, she knew not where she could get a better, and she should
like to, and she did, stay where she was. The young man sought
a home elsewhere; but, after a few months, finding it was
necessary to support his animal existence by labor, and not finding
any place better for that purpose, he was glad to return. As it
was with them, so it would probably be with a good portion of our
colored people at the South. Wherever they have been properly
treated, if they should have their liberty, they would undoubtedly
remain on the same estate on which they happened to be at the
time they should receive their freedom.
REVOLUTIONARY FATHERS;
: 49
revolutionary struggle, (and these are but few out
of many,) can it be possible that these men, when
they came to provide for the administration of jus-
tice, and the general welfare of the country, which
they had rescued from the hands of an oppressor,
could have guaranteed to any portion of this coun-
try that they would maintain within its borders a
system that would be in violation of every principle
they had heretofore professed, that they would
guarantee an institution which many among their
number had already denounced as one of the evils
against which they had struggled, and the means
by which that system was perpetuated has been
termed by our government piracy? It cannot be !
We would renounce the thought. That many of
them may have been mistaken in their views, and
that they did not fully carry out the principles :
they had promulgated, or rather they did not en-
force the carrying them out, we must admit. But,
because we admit this, it is not necessary that we
must deny them all desire, on their part, to have
fulfilled all their obligations to their country and
the world. They had a great work to accomplish;
secret and open foes; and we must be thankful
they accomplished as much as they did, and now
help carry out their principles of liberty, either
upon the foundation they laid, or upon others,
which greater light in this later age may have
thrown in our path. But; before we lay any other
foundation than that that is laid, let us clear away
the rubbish that has been thrown upon it, and see
50
REVOLUTIONARY FATHERS.
if it is not sufficiently broad and well founded for
all the purposes we would accomplish ; and, if it
is so, we may be saved the trouble and expense of
laying another. For this purpose, we will go to
the Declaration of Independence, the Confederacy,
and to the Constitution. What is the distinctive
character of each and all of these instruments ?
Without cominenting on the explanation since
given of the expressions on the subject of the
equality of man, that they are but a “flourish of
trumpets," what do they say
CHAPTER III.
THE ARGUMENT DERIVED FROM THE DECLARATION
or INDEPENDENCE, THE CONFEDERATION, AND
THE CONSTITUTION.
The Declaration of Independence declares, m
“We hold 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, govern-
ments are instituted among men, deriving their
just powers from the consent of the governed ;
that, whenever any government becomes destruc-
tive to these ends, it is the right of the people to
alter or abolish it, and to institute a new govern-
ment, laying its foundation on such principles, and
organizing its powers in such form, as 'to them
shall seem most likely to effect their safety and
happiness." "Here, we think, are principles broad
and comprehensive enough, and which, iſ carried
out, would annihilate, and in fact, when they were
adopted by the peoplo of the United States as their
opinions, and the reasons why they took up arms
against the mother country, did annihilate, so far
as words could, the whole slave system. That
moment, every slave in the United States was
52
THE ARGUMENT.
LI
free; and, if our colored friends had taken advan-
tage of the declaration here made, and laid in their
claim to be included in the family of man, and as
a portion of the people of the United States, we do
not see, we cannot see, how their claim could have
been disallowed by the men of that age. In fact,
we believe the writer of these sentiments, seeing
how utterly the colored man's rights were denied
him, suggested to his mind the expressions here
used, and he meant they should be broad enough
to cover his case; and, unless we deny to him and
the men associated with him the knowledge of the
meaning of words, and of their bearing, we cannot -
get rid of the consequences; they meant every
person in our country should be free. They made
no exception to the African race; but, on the con-
trary, it is well known the person who wrote
this declaration made the observation, that he
trembled for his country, when he reflected that
God was just, and that he could not take sides
with us in such a contest as might take place
between the oppressor and the oppressed. We
have seen what many of the most active men
engaged in that Revolution have said; we know
what was the action of the Statés north of the
Potomac; and we must come to the conclusion
that the people of that time both understood the
meaning of the language here used, and meant to
have the principles carried out to their fullest ex-
tent. In order to show that such must have been
their intentions, we will go on and examine the
Constitution, and endeavor to see how that harmo-
THE ARGUMENT.
53
nizes with these sentiments ; but, before going to
that instrument, we will make a few observations
on the articles of the Confederation.
The Confederation was formed at the com-
mencement of the revolutionary war. It was a
league among sovereign States for the purpose of
repelling a common enemy; and, as it was formed
in anticipation of an arduous contest, it is for the
most part taken up in defining the powers of con-
gress and the several States, as regards the prepar-
in describing the powers of the several States, and
that of congress in their action on this subject.
They had just made their declaration of senti-
ments; it was for liberty. They had taken up
arms; and it was for liberty. They were to be
united; and we perceive this idea of liberty to be
the prominent one running through this whole
sions than those they had made in the Declaration
of Independence, they, in the first place, simply
style the confederacy - The United States of
America.” Then each State was to have its
own sovereignty, freedom, and independence,
and all powers which were not expressly delegat-
ed to congress. It was a "league of friendship
with each other, for their common deſence, the
security of their liberties, and their mutual and
general welfare,” &c. And, “the better to secure
and perpetuate mutual friendship and intercourse
among the people of the different States in the
Union, the FREE inhabitants of each of these
5*
54
THE ARGUMENT.
:
States (paupers, vagabonds, and fugitives from
justice excepted) shall be entitled to all the privi-
leges and immunities of free citizens of the several
States; and the people of each State shall have
free ingress and egress to and from every other
State,” &c. This sentence is the only one to
which allusion is in any way made to slaves in
this country. ' A stranger could not determine
that there were any, but by the word free as ap-
plied to persons; and this word is not uniformly
used before the term people, even in this very
sentence. It was a word, undoubtedly even in its
connection, forced in, much to the discomfiture
of many; for it will be perceived that the ex-
pression, “the people of each State shall have
ingress and egress to and from every other State,"
does not have the word free before it-;- so that,
under the Confederation, if this sentence should be
construed in its enlarged sense, every slave, if he
belonged to the family of man, would have the
power of going from one State to another as he
listed. He might be deprived of the privileges
of a free citizen in' every thing but locomotion.
This, according to the strict construction of the
language, was not denied him.
In article 15th we have this expression :“ Every
State shall abide by the determination of the United
States in congress assembled, in all questions
which by this Confederation are submitted to
them.” Now we should construe this, that any
question arising, in which the common defence,"
the " security of liberty," the "mutual and general
THE ARGUMENT.
. 55
LUGU
welfare, and the perpetuation of mutual friendship
and intercourse," was involved, was a fit subject
for the action of this Confederation; and, if they at
the time thought slavery was to interrupt these re-
-lations, they would probably have acted definitely
on the subject; but, as it was, they took an indi-
rect course, and left it for the colored man to
ascertain what his rights were from the principles
they had established. But the Confederation, as it
is well known, for its want of vitality in other
respects, did not, as was urged by some, though
denied by others, fulfil the intentions of the people
of the country, and the Constitution was adopted.
The question now arises, what were the inten-
tions of the men who went to Philadelphia to
form this Constitution, and the intentions of the
men who sent them there? Where shall we look
to ascertain this? Here was a large and extensive
country. They had, by the course of Providence,
been put in possession of it, and it belonged to
them to make rules and regulations, or, in other
words, laws, by which the inhabitants should be
governed : they had separated from the mother
country for the ostensible purpose of freeing it from
the tyranny she was endeavoring to practise to-
wards it, and this great continent, from Maine
to Georgia, and from the Atlantic ocean to the
Mississippi, was to be under the guidance and di-
rection of the men who should compose the con-
vention then about to sit. Had the principles that
had actuated our revolutionary fathers changed ?
had their love of the right, their love of liberty,
THE ARGUMENT.
at all declined ? had they forgotten the principles
they had promulgated in the Declaration of Inde-
pendence and their other documents ? No! for the
first words they promulgate to the world, aſter their
arduous deliberation, were, “We, the people of the
United States, in order to form a more perfect
union, establish justice, insure domestic tranquilli-
ty, provide for the common defence, promote the
general welfare, and secure the blessings of liberty
to ourselves and our posterity, do ordain and es-
tablish this Constitution for the United States of
America,”— language simple, expressive, and easi-
ly understood. The object, as they say, was to
establish justice, as if injustice had in some
measure prevailed in the land, and also to see
that right should predominate ; and, if there were
any practices in the United States that militated
against the right, then it was their intention they
should be done away; consequently, such evil
practices would be in opposition to the object
for which the Constitution was formed. Now if
slavery is wrong--and it was so considered by our
fathers — the system must come under the class
of those practices which they considered unjust ;
and that they did consider slavery unjust may be
proved from the fact that the war of the Revolu-
tion was wholly carried on, on the principle of re-
sisting the attempts of Great Britain to enslave
them by improper taxation : they could not bear to
be unjustly taxed in their purse ; how much less,
then, could they have borne to have their whole
body and soul under the command of any one who
THE ARGUMENT.
57
O
seemed disposed to take them. They evidently
must have considered such a system as one of the
greatest wrongs, and directly opposed to the first
principles of justice.
The next object was to insure the "domestic
tranquillity." The question here arises, how can
this be secure? evidently by "establishing jus-
tice ;” and any thing that is at war with justice is
at war with peace; and, consequently, no lasting
tranquillity can be maintained so long as injustice
- prevails. 'Man seems as if he could not be at ease
under oppression, as if his whole nature revolted at
it, and wars have ever been the consequence of it.
History of wars, both public and private, portrays
a series of attempts to throw off the yoke of the op-
pressor ; and can the United States hope to secure
peace in any other way than by acting uprightly?
If so, her hope must be vain. The only sure
course is, not only in her foreign, but in her private,
relations, to act towards all with that impartiality
and good faith that will secure respect, and give
no occasion of offence. No other course can possi- -
bly secure tranquillity but such a course of action.
Is slavery, then, treating the colored man in good
faith ?. does this give no occasion for offence in
treating him as she does ? has he, under this system,
all the rights of the white man? can he come and
go like him ? does he not perceive how widely
different he is treated, and does he not take note
of it? Let the South Hampton insurrection an-
swer; let the Florida war answer ; let all the
various insurrections and attempts at such be
58
THE ARGUMENT.
written in a book, and sum up their number, and
see if he has been satisfied with his treatment, and
if we can hope, by the continuance of such treat-
ment, he will be likely to learn to acquiesce in it.
No! the facts are, no domestic tranquillity can be
maintained under a system of slavery; and even if
our fathers thought it could, though we do not be-
lieve they did, yet, as it has since been ascertained
there can be none, it would be our bounden duty,
both as their decendants, and as Americans, in order
to fulfil their object, to do away not only with
slavery, but every other practice, so far as in our
power, that should interrupt this tranquillity. And
we must be false to our trust if we do not. We
should be jealous of every practice, whatever it
might be, that would have a tendency to bring
into collision the different sections of this great
family, and no one part of it can have the right
to introduce such practices as would have such
a tendency, without making itself liable to have
its conduct scanned and questioned by the other
part; and if it can be proved that such would
be the case, then the whole would have a right to
interfere, and cause such proceedings to cease, and
bring about a different order of things. Let it not
be here said each part has a right to regulate their-
own affairs. None have a right to do wrong; and,
if slavery is a wrong, then have not the South the
right to continue it; and, viewing it in this light,
has not the South been changing her mind on the
subject of its guilt, in part, because the Constitution
will not uphold her in her course? There are
THE ARGUMENT:
59 -
many reasons to suppose it is so, and the cause of
her sensitiveness is owing to the consciousness of
her dereliction from duty, and the opposition of her
practices from the first principles of right, and the
object for which the Constitution was formed.
The next object was to provide for the common
defence. Even in this purpose, although it might
more particularly be applied to foes without, and
the securing ourselves from external attacks,
the common defence cannot be so well provided
for when it is necessary that a good portion of our
troops have to be employed in keeping in subjec-
tion a portion of our own people ; and therefore, in
providing for the common defence, as wise legis-
latures, and a wise people, we should take into
consideration all the circumstances that would in-
terfere with the facility of defending the country
in the best possible manner. If, then, slavery, or
any other circumstances, arise to prevent its de-
fence, and these domestic relations come in to
thwart, and to prevent the security of the country
from external foes, then the congress of the United
States would not be fulfilling its duty, did it not
do away, so far as in them laid, the obstruction,
and prepare the country for the defence, one of
the objects for which the Constitution was formed.
We see not how we can get rid of such a conclu-
sion; and that slavery does lay the country open
to the facility of external attacks, and that slaves,
as a body, might be easily worked upon to join a
foreign standard, might be easily conceived; and
that the Hon. John Q. Adams was correct, when he
: 60
THE ARGUMENT.
asserted the whole system might come under the
action of congress, by the way of the war powers.
The next object was to “promote the general
welfare.” How is this to be done? Certainly
not by fostering and maintaining within our bor-
ders what is, and what has heretofore been, consid-
ered and acknowledged a moral and political evil;
because such a proceeding could not be for the
general welfare. And here, again, we think, may
be seen one of the causes why our southern poli-
ticians are so anxious to have the character of
slavery changed, and that it should be considered
a blessing rather than a curse, and the reason of
their anxiety to show that it was an institution of
the Bible. For none of them could hope, for a
moment, now at this late day, to maintain that the
slaves of this country had not been in the land a
sufficient length of time to learn the plan of civil-
ized society, if they had been properly instructed.
They cannot now complain of the want of time,
to teach a slave to read. Hence they would
change the ideas of the civilized world on the
character of its guilt, and would denounce every
subject as “being worthy of death without ben-
efit of clergy.” Fatal mistake! to suppose man-
kind will ever consent that wrong is right, and
right wrong. The public mind need or needed
but to be enlightened on the subject, to cause
Hon. Mr. McDuffie's potriarchal institution.
THE ARGUMENT.
61
them to express a universal execration of the
foulness of its nature. Our fathers may in some
measure be excused for not taking more summary
measures for cutting off so unseemly an excres-
and the trials and troubles they had already gone
through ; and, no doubt, the argument that they
would receive within their civil privileges a body
of comparatively heathen and ignorant people, who
would not appreciate their situation, and might
endanger, through their want of knowledge, in
that part of the country where they were the most
numerous, the free institutions which they had
been so long laboring to establish ; and it was
mainly for this reason that they passed over the
subject with the silence they did, with the expec-
tation that what they had accomplished would
soon extirpate the evil. But, as has been before
remarked, it was a sad mistake; and, since a suffi-
cient time has elapsed to have instructed these
men, so that that excuse can have now no weight,
we should exert all our powers to do away an evil
so monstrous, and relieve our land from a disgrace
under which it is laboring, and from the necessary
evils slavery must and does bring in its course,
such as ignorance, dissipation, vice, immorality,
and the consequent degradation and death to which
these lead, and which are utterly opposed, not only
to the general welfare of this country, but to a
large portion of mankind in different quarters of
the globe. The arts, sciences, manufactures, even
agriculture, declines under its withering influences.
'62
THE ARGUMENT.
Under the general welfare of the United States,
which was placed in the power of congress to con-
sult, might they not take into consideration the whole
subject of slavery. We cannot get rid of this by
saying there was any compact, for there was none:
there is neither letter nor page where it can be
found. But here is a declaration before the world,
and this nation has committed itself, that this
country shall be ruled by impartial laws, and that
the congress of the United States shall consult in
all things the general welfare of the people. And
if they do not, then are they false to their trust,
and do not fulfil the intention of our fathers; and
the objects for which the Constitution was formed
are laid low in the dust, and we cannot look to
that instrument as a guide and a rule for the con-
duct of our representatives: nor can foreigners
look to it as an instrument from whence they can
learn the genius of our government; and if they
cannot look here to find out the object for which
it was formed, where can they? evidently, no-
where. Here is the only official declaration given
to the world, of the object, intent, and purposes,
for which any government was adopted ; and if
we of this generation have departed from these
principles, and mean this great continent shall be
ruled or governed on different ones, it is time we
should change the caption to the Constitution, and
place another in its stead, that mankind may not
be deceived, and particularly those of the African
race, if they should read this instrument to become
acquainted with its principles, for the purpose of
determining whether to come to our shores.
THE ARGUMENT.
63
The last and most important object for which
the Constitution was formed was to secure liberty
not only to themselves, but to us and our posterity;
or, as they expressed it, “the blessings of liberty
to ourselves and our posterity.” They looked
abroad upon this great land; they found a great
portion of this continent placed under their juris-
diction; and, however fallible many and perhaps
all of them may have been, and however anxious
many may have been to secure to the few the
principal portion of the government, yet a vast
majority, perceiving the inestiinable value of indi-
vidual liberty, and that it was by this alone any
great improvement could be carried on in civil
society, they made this the keystone of the arch
that was to bear the weight of the republic. This
was to be considered as paramount; it capped the
climax of the blessings to be communicated to
generations yet unborn. They had become ac-
quainted with the evils of individual slavery, as
it then existed in the African; they had success-
fully resisted the attempt of Great Britain to impose
on them a political slavery; and they now stood
.forth to the world, free and independent. They
had, by severe exertions, secured to themselves
freedom from the restraints of the mother country;
and they were now preparing to secure themselves
from any unwarrantable exercise of power that
might spring up among themselves, and prevent
any individual or individuals from gaining any
unlimited power. Propositions had been made,
and rejected, to create these United States into a
TT
64
THE ARGUMENT.
monarchy, and to erect a throne in this country ;
the people and the master spirits of the land deter-
mined otherwise. They understood the question
on which they were acting, the meaning of the
words they were using, and their import. They
consented to no proposition they did not mean to
carry into effect; but every thing, so far as we
can understand their determination, was distinct
and plain, though all of their subsequent acts might
not have been so. In that assembly, as there ever
will be in all assemblies of men, there may have
been some who would have gladly perverted the
powers delegated to them, to subserve their own
vile purposes, or who, through righteous fear of the
consequences of popular government, wished to
give as much power to the executive as they
thought would be necessary to carry out any
measure that congress might consider right, inde-
pendent of the general mind, - men who, having
no faith in the power of the people to take care of
themselves, and who were ever anxious to provide
for them suitable directors and governors, and
consequently were continually proposing guards
and checks for their restraint, in fact, in many
things gave, both directly and impliedly, pow-
ers to congress that the people, in their con-
ventions, did not wholly approve; and, conse-
quently, many amendments in favor of liberty
were proposed, and were in part adopted, and
now make a portion of this instrument. In Vir-
ginia, and in many of the States, the opposition
was very strong, because congress assumed so
YY
THE ARGUMENT.
much ; and though in the caption it would seem
as if there was nothing frightful, yet, as we shall
see, the expression “we the people” produced in
the breast of one man, if no more, great distrust;
and, if the people ever became so corrupt as to
change the meaning of terms, and call wrong
right, and right wrong, as they have seemed of
late willing to do, then, indeed, might such an
expression be fearful, but not otherwise.
Thus we have gone over the caption of our
Constitution ; and, if it should have its-principles
carried out in good faith, there could not possibly
be any danger, excepting that those who should
legislate for the country might be deceived in their
course of action. No one, however, could have
any cause to complain that his individual rights
were wrested from him, as the courts. would at all
times be open for his protection.
We will now take up in order the different arti-
cles of the Constitution that have a bearing on our
subject, and try to ascertain what may be their
meaning. In article 1st, 2d section, 3d paragraph,
we have this expression : "Representatives and din
rect taxes shall be apportioned among the States
which may be included within this Union, accord-
ing to their respective numbers, which shall be
determined by adding to the whole number of
a term of years, and excluding Indians not taxed,
three fifths of all other persons." On this it may
be supposed there was considerable debate ; and,
as it is the strong hold on which many here
6*
66
THE ARGUMENT.
ground their assertion that the Constitution guar-
anteed slavery, it may be well to dwell upon it,
and consider it in its various relations. . We have
examined the secret proceedings of the convention
which prepared the Constitution, but we cannot
find in them any thing said at the time on which
to make up a judgment of the intent and meaning
of this clause, and consequently our remarks here
will be drawn from what appears on its face. To
one unacquainted with all the circumstances of
the case, the language would undoubtedly be un-
meaning. They would not know what was meant
by the three fifths of all other persons." They
here find that taxes and representation were to be
apportioned by reckoning together all free persons,
and those bound to service, and three fifths of all
other persons, excluding Indians not taxed. Now
the term free persons might have relation, and be
used in opposition, to those bound to service, or to
paupers, as well as other individuals; and, unless
we knew there were slaves in this country, we
could not suppose, from what had before been said,
it could be possible there were any; and undoubt-
edly our fathers were ashamed to use the term
slave, as applied to the condition of any people
then under their jurisdiction. They therefore
avoided it; and it would seem as if some one had
worded this phrase in such a manner that it would
not require an alteration of the Constitution for the
purpose of having representatives chosen, or taxes
collected, provided the system of slavery should
be done away, and were careful to have it so
THE ARGUMENT.
67
worded as to exclude the idea, as much as possi-
ble, that they had any thing to do with it; and al-
though it has been asserted that, because the Con-
stitution recognized the system so far as to base
taxation and representation upon it, (for it is
maintained, and without doubt it is the case, the
three fifths of all other persons meant slaves,) con-
sequently slavery is guaranteed, does this neces-
sarily follow ?. We think not. It only says,
while there are any other persons in the commu-
nity besides free persons, and those bound to ser-
vice for a terrn of years, five of all others should
be considered but equal to three ; but if there
were no such other persons, there could be none.
to be so reckoned, and consequently every man
would be considered as a man, enjoying all the
privileges of a freeman; so that the construction
of the sentence evidently looked to the time when
there should be no such other persons. But, even
taking it as looking to the perpetual continuance
of slavery, and that taxes and representation were
to be apportioned accordingly, and our fathers
made the bargain with their eyes open, and that
for these considerations, as has been alleged, they
agreed to this section, because slaves should be
taxed in proportion to their representation, and
that, for this reason, we have guaranteed the pres-
ervation of this property, we maintain that, as the
consideration has been taken away, the correspond-
ing obligation is also taken away. It was then
expected that this government in a great measure
would be supported by direct taxes, and conse-
68
THE ARGUMENT.
quently the advantage given the South in the
superior number of representatives in proportion to
the free inhabitants would be balanced by the
greater amount of taxes they would have to pay.
in proportion to their representation; and, if they
did make such a bargain, though in morals it
could not or should not stand, yet perhaps it may
be said it should continue to be binding upon all
future generations. But we ask what is now the
case ? and what brought about a different arrange-
ment? and why are there at this present day no
direct taxes for the support of government ? We
say, because the South, finding she had made a bad
pecuniary bargain, took advantage of the reluc-
tance which most men, and particularly the poor
man, had of paying away money in a direct man-
ner for the use of the powers that he, joined in
with this reluctance, and used her persuasion to
induce a majority of congress to raise their taxes
by indirect means, upon the imports of the country;
and, although it was done with much opposition
of the North, yet the South, appealing to this pop-
ular prejudice, as well as advancing the idea, and
agreeing with the northern mechanic, that such a
course would help manufactures, succeeded in gain-
ing her object thereby, as undoubtedly she well un-
derstood, threw most of the burden of the govern-
ment on the North ; for they could say to them-
selves, and without doubt did, "As our slaves do
not use much, if any, foreign goods, we shall have
but little or no duty to pay for what they consume,
while we shall have sixty-one votes for every hun-
THE ARGUMENT.
69
L.
dred of our slaves, to elect members to congress.
Saving what foreign goods we and our immediate
families may consume, we can arrange it so that
the coarse clothing that will answer for our slaves
can be manufactured in this country, or else have
it free of duty, and, by this operation, save our-
selves from the onerous necessity of paying taxes,
and throw them all off on our northern friends."
This, whether they reasoned so or not, they
effectually have done. The North then, being
driven into the measure against her wish, or at
least against the wish of those who made the bar-
gain, and it being said, and at last finding manu-
have the home trade, and that there was a pros-
pect, if it could be secured to her, she would be
able to maintain herself against foreign capital,
consented, and a tariff was made, when it was
thought by the South it might also be a benefit to
her. But, after a series of years, when it was as-
certained that the peculiar institution " there
was not congenial to such labor, then threats,
which their ſertile geniuses were capable of de-
vising, were put in requisition to reduce the duties
on all goods to such an amount as would just ena-
ble the government to get along without affording
any protection to manufactures, or having that at
all in view. Now, although there may be no ob-
jection to having things as they now exist, yet we
do say all the consideration for which the North
guaranteed slavery to the South (though we do
THE ARGUMENT.
not admit she ever did) has been forcibly taken
from her, and she is no longer under any obliga-
tion to fulfil her part of the contract. The value
received is gone, and taken, too, without her con-
sent; and therefore she is under no further obliga-
tion for any guaranty that may be said to have
been given for the continuance of so foul a system,
admitting, also, (which is not admitted, she had a
right to make such a compact, or guaranty. But,
so far as has been made public, there is no evi-
dence any such was given, or ought, or could have
been given. And, besides, we think it would be
a very pertinent question to ask, — did the colored
man agree to be considered but three fifths of a
man? did he acknowledge the right of the dele-
gates, assembled to form the Constitution, to legis-
late for him? or, if he did, did he suppose that
those delegates were to take away all his rights ?
and has he ever yet acknowledged the justice of
those proceedings? It can safely be answered,
no; not until he has a right to vote, and be heard
on the floor of congress, can it be said he has
agreed to his debasement.
Neither can the American congress ever usurp
the right without involving itself in the most pal-
pable guilt. They therefore did not, they could
not admit, and they would have been ashamed
to have expressed openly, if they could have
admitted, there was a person in the land from
whom they were taking away the right of being
fully heard before those who were exercising the
right of taxing him. Here, however, the influ-
THE ARGUMENT.
71
up in med to bed and
ence of the slaveholder was felt, and here it
caine up in opposition to the free spirit of the land,
and endeavored to bend it to its own purposes,
and, after long, labored, and vexatious discussion,
and an express determination to trig the wheel of
united freedom by the more southern States,
consent was at last obtained, that, if there were
any other persons in the community than free
persons, and those bound to service for a term of
years, then they should be considered but as three
fifths of a man. But, in such a forced consent as
that, when so many other rights were thought to
be involved, can it now be argued that this con-
sent must be held in the light of a guaranty to
maintain forever a system of slavery in our land?
We think not; the most that can be made of it is,
an evil of such magnitude existed, they felt them-
selves powerless to root it out; but, if the system is
maintained, that community who upholds it shall
not have so extensive political privileges as the
one that does not, a portion at least of her people
are but three fifths of other men. Whether there
is not a deep censure of those States that will suf-
fer their population to be so degraded, implied in
the use of the language of this section, we think
may be made a question.
In the first clause of the 8th section, article
1st, power is given to congress “to lay and col-
lect taxes, duties, imposts, and excises; to pay the
debts, and provide for the common defence and
general welfare of the United States; that all
duties, imposts, and excises shall be uniform
72
THE ARGUMENT.
1
throughout the United States." Now, if it should
be denied congress was the representative of the
people, but of the States, and, as such, had no
power to interfere with the internal policy of the
States, yet this clause would show that, as repre-
sentative of the States, it was vested with the
power to provide for the common defence and the
general welfare ; and, having the power, it is their
duty to attend to both these subjects; and, if a dis-
cussion should be had on any subject involving
either, and, consequently, if any State, or number
of States, are pursuing a system of policy detri-
mental to either, then it is in their power to have
the obstruction removed, and to see that the United
States, as a whole, are not injured; and if it can
be proved — and we think it can be -- that slavery
is an obstruction to the common defence, and re-
quires constant care and vigilance of our army,
and, consequently, is an expense to the country;
and, further, that the general welfare suffers by its
continuance, that it injures, the morals, the peace,
and harmony of the communities in which it ex-
ists, and the advancement of civilization, and
the general cause of truth, of virtue, of science,
&c. &c.-- then, we say, this clause places it in the
power of congress, whether it is done as "we the
people," or as we the States, to put an end to its
continuance. It cannot be argued that a State,
or any number of States, may institute such prac-
tices within their borders as to require the protec-
tive oversight of the others, and yet place it out of
the power of these others to say aught against
THE ARGUMENT.
73
their conduct. If, therefore, congress should open
its doors, that its evils may be discussed, and, after
mature deliberation, it is found the evils attending
it are not so great as has been represented, as a
mere political body they can say so;, but if, on the
contrary, it can be shown its character is bad, that
it is an incubus upon the body politic, a violation
of the laws of God and of human nature, then it
would be their duty, if there is no other way pro-
vided, to act in the premises, and do away a sys-
tem whose evil consequences to the community
are apparent, however much any particular section
of country may be wedded to it.
The sixteenth paragraph of the same section and
article has relation to the “power of congress over
any 'district that might be ceded to the United
States, as the seat of government, and the places
purchased for the erection of forts, magazines,
arsenals, dock-yards, and other needful buildings ;"
and the seventeenth to the making all laws
which shall be necessary for carrying into execui-
tion the foregoing powers, and all other powers
vested by this Constitution in the government of
the United States, or in any department thereof."
The legislative power over the places mentioned
above is “exclusive ; " no one else is to share it
with them, and, consequently, it must be as un-
limited as any of the State legislatures. We do
not see in either of these paragraphs any allusion
made that it was necessary for them to conform to
the proceedings of other States to determine them
in their actions in regard to the territories over
-
74
THE ARGUMENT.
11 a
which they were to exercise their authority. The
expression is - and this, let it be remarked, was
made before the seat of government was located
that over any spot “not exceeding ten miles
square they were to have exclusive jurisdiction,"
as also the same over the other places, above
enumerated, they should wish to purchase of the
different States. Among all that has been said or
written upon this subject, of the power of congress
over the spaces allotted for their use, we cannot
but come to the conclusion that no State is to
share the power of legislation with them, and that
this power of legislation is exclusively in congress :
the States relinquished their right when they
ceded the territory.
Article 2d, section 9th, first paragraph : “ The
migration or importation of such persons as any of
the States now existing shall think proper to admit,
shall not be prohibited by congress prior to the
year one thousand eight hundred and eight, but a
tax, or duty, may be imposed on such importation,
not exceeding ten dollars for each person.”
Though nothing is said, in this article, what is
meant by the words migration and importation, as
respects persons, we will admit, for the sake of the
argument, that they referred to slaves, though it
might be supposed the putting on such a forced
meaning to the word migration was altogether
gratuitous, and ought not to be allowed; -and even
the expression “importation of persons " might,
without any great departure from the principle of
construction, mean any body else beside slaves.
THE ARGUMENT.
75
Yet we will let it all pass, and say it was slaves
that was meant; and, in so doing, we must confess
here was a great dereliction from duty; and though
we cannot agree with some that all the delegates
who formed the Constitution were sent there to have
such a sentence inserted in that instrument, yet it
must be confessed there was exertion made to
have it done; and our fathers, in imitation of the
reed that bends before the storm, gave way to the
influences around them, hoping they might erect
their heads after the wind had passed, with more
security of escaping the destruction which they
might think awaited them had they been less
complying. But, even here, they studiously avoid-
ed the word slave ; and they gained a point ; for, in
the Confederation, they had no control over the sub-
ject in the different States; but, by this act, they
have so done. They have further declared the
act to be piracy, with the penalty of death at-
tached to all those who should be found engaged
in the traffic. Our southern friends can decide for
themselves, whether is the greater crime, buying
slaves in Africa and bringing them to these shores,
or buying them in one district of this country and
sending them to another. For ourselves, we can
see none, and must conclude, if it is piracy in the
one case, it is robbery in the other. Their country
has branded the foreign slave-trade with its proper
definition, and we hope a brand equally as infa-
buying or selling their fellow-men, whether it be
on the land or on the water.
176
THE ARGUMENT.
But it inay be said, for this acknowledgment of
the lawfulness of slavery.an equivalent was given;
that a clause, which had been introduced by the
committee of detail, stating “no navigation act
should be passed without the assent of two thirds
of the members present in each house," should be
omitted, the Southern States being anxious for such
a clause, and the North not wishing such an one;
and, because that clause was omitted, the North is
now bound. But here, again, the bargain is up, the
time for its continuance having ceased in 1808;
and now the North have as much reason for such a
clause as the South; in fact, if that clause had
been in, we never should have had an embargo;
and our merchants, whose interest was here un-
that restriction, to pay the forfeit of their self-
ishness.
Article 3d, section 2d, first paragraph: “The
judicial power shall extend to all cases in law and
equity, arising under this Constitution; the laws
of the United States and treaties made under their
authority,” &c.; "to controversies between two or
more States, between a State and citizens of
another State, and between citizens of different
States, between citizens of the same State claim-
ing lands under grants of different States, and be-
tween a State and the citizens and foreign States,
citizens or subjects."
This section refers to the powers of the judi-
ciary; and, as perhaps it may be one of the most
THL ARGUMENT:
tion. As, however, we are not connected with the
law technically so called, we may and undoubted-
ly we shall be excused, if we do not, or cannot, ex-
plain and illustrate all the bearings of its different
phrases, or be able to illustrate in so full a manner
as we could wish the meaning of the term “law.
and equity, that may arise under this Constitu-
tion." But we do think, if we know the meaning
of the words "law and equity," that it would be
in the power of the slave, or any of his friends, to
bring his case before the Supreme Court of the
United States, to ascertain whether he can be held
in bondage consistently with "law" or with
s.sequity," or consistently with our present Con-
stitution; whether it acknowledges in terms, or
by language, in its ordinary acceptation, that
could be so construed as to give one citizen or
one person of the United States the right over
the liberty of another; whether, in the view of
this Constitution, all of the people of the United
States do not stand on an equal footing, and that it
does not acknowledge, by that clause in the 4th
article of the amendments, “the right of the peo-
ple to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures,
shall not be violated ;” and also in the 5th article
of the amendments, no person shall be deprived of
his life; liberty, and property, without due process
of law;." and also, in the 8th, “excessive bail shall
not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted," -- the
great truth put forth in the Declaration of Inde-
17*
178
THE ARGUMENT.
1
pendence, that “all men are created equal, and
that they are endowed by their Creator with cer-
tain inalienable rights, that among these are life,
liberty, and the pursuit of happiness," &c.; and
that this is the principle on which to found
their judgment as to the “law and equity " that
should be awarded to every individual embraced
within the limits of the United States, univer-
sally -- not to particular individuals, — not to
black, yellow, or white; — not to the free alone,
- but to the bond, if there were any such.
The words are the right of the people to be
secure," &c.; not to the FREE people, but the
people,” without distinction, and “no person shall
be compelled," &c.; not no free person, or no
white person, but no person, applying person uni-
versally ; nor shall “excessive bail be required,"
&c. « nor cruel or unusual punishments inflict-
ed ;” and, consequently, if the black man, or
the yellow man, can maintain his character as a
man, then must he come under the denomination
of one of the persons or people spoken of; and,
consequently, no State legislature, or any person
in a State, no, nor even congress itself, could dare
presume, under this clause, and these articles, to
hold, or restrain, or punish, any individual, unless for
crime or in case of rebellion, against their consent.
The language, it appears to us, is explicit, plain,
and straight forward ; and if there were, or could
have been, slaves, after the Declaration of Inde-
pendence was adopted, this article, with these
amendments, were amply broad to meet every case ;
C
.
'
OP
THE ARGUMENT.
79
.
SI
and nothing but the not bringing their case before
the courts, on the part of those interested to be
free, could have prevented them from becoming so.
It appears to us the court was given jurisdiction in
the premises, and the language in the amendments
is sufficiently clear, that the rights of no person, or
any of the people, should be violated in their per-
sons, their property, their liberty, or their life. No
allusion whatever is made to there being two
classes of persons, or that this language was to be
applied to two distinct people; but, on the con-
trary, every person, and all the people embraced
within the jurisdiction of this government were to
receive impartially its protection ; and the faith of
the government is clearly in fault, if there are any
now within its jurisdiction who are denied the
privileges here set forth in the 4th, 5th, and 8th
articles of the amendments, if a case where a
man's liberty was involved has been decided by
the courts in favor of slavery; but we believe,
in the highest court of the country, no such de-
cision has been made.
The 11th article of the amendments appears to
clash with this section ; for it says the court
shall have jurisdiction in "controversies arising be-
tween two or more States, between a State and
citizens of another State, between citizens of dif-
ferent States, between citizens of the same State
claiming lands under grants of different States,
and between a State, or the citizens thereof, and
foreign States, citizens, or subjects. The 11th
article of the amendments says, “The judicial
O
U
80
THE ARGUMENT.
'
power of the United States shall not be construed
to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by
citizens of another State, or by citizens or subjects
of any foreign state.” In the one it expressly
says it shall have jurisdiction in controversies
arising between a State and citizens of another
State, or a State and citizens or subjects of a
foreign State; in the other; it says it shall not be
so construed. The meaning of the amendment;
if we understand it, is; the court shall not take
cognizance of any action, brought by a citizen of
another of the States, or a citizen or subject of a
foreign state, against one of the States of the
Union. On first reading this, we knew not the
object of this clashing, or why this amendment
was put in. Mr. Marshall, as we shall perceive
in another part of this work, says it was occa-
sioned by the indebtedness of the States, and, in
their sovereignty, they did not wish to be brought
by a member of another State, or by foreigners,
before the court in an action of debt. We know
not our case is affected by this inconsistency, or
that it does prevent a suit being brought before
the court to liberate a man held as a slave;
and therefore we shall leave it for our lawyers
to speculate upon, and reconcile the differences
that exist between the original article and the
amendment; whenever they may have an occa-
sion.
The courts; however; have jurisdiction in all
cases, both original and appellate, in a controversy
THE ARGUMENT.
81
7
between a State and the citizens thereof,” and
this is sufficient for our purpose ; for, if the negro,
or the slave, whether white or black, should bring
his cause into a State court, and that court decide
he can be held in servitude against his consent,
without crime, and punished also for no crime,
then may he not appeal to the Supreme Court of
the United States, and inquire whether it is lawful,
under and in pursuance of the Constitution, “the
people may be seized in their persons, houses,
papers, and effects;” or that many person may be
deprived of his life, liberty, or property, without
due process of law,;" or that "cruel and unusual
punishments” may be "inflicted.” But, it may
said, the slave is not a citizen, and therefore he
cannot come before the court; but is not the court
competent to try that fact, whether he be a citizen
or no, if his citizenship should be denied ? and -
whether, if there is any technicality in the mean-
ing of the word citizen in some cases, the use of
the word person in the amnendments does not
destroy that technicality with regard to the people
of the United States ? This, it would seem, would
be the first point in the case for their decision;
and whether the expression, "nor shall any per-
son be subject for the same offence," &c. “nor be
deprived,”' &c. will not include all persons, whether
white or black, bond or free ; and, whether in the
expression, “the right of the people to be secure in
their persons;" &c. the colored man must not be
included as one of the people, and that he should
be defended against any "cruel or unusual punish- .
82
THE ARGUMENT.
ment;" not simply as might be practised by the
government of the United States, but whether
practised towards him by a State or any of the
citizens thereof; in fact, whether the United
States, or a State, can allow, any of its people to
be deprived of their liberty by any one of its citi-
zens; and, if so, whether the United States, or the
State, is not itself guilty of the fact. If we
should hazard an opinion in this case, we should
say it was; and, if we are correct, is there not a
suppression of the truth, when it is asserted that
the different States have nothing to do with slavery
as it may exist in any particular State, when it is
known the United States have given the courts,
both state and national, power over this subject,
and made it their duty to protect the people in
their life, liberty, &c. if they are called upon so to
do? We leave those who have made the assertion
to answer the question.
The next expression which is said to allude to
the slave is contained in the third paragraph, 2d
section, 4th article. It is in these words:
6 No person, held to service or labor in one State un-
der the laws thereof, escaping into another, shall, in con-
sequence 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 labor or service may
This sentence may have been, or may not have.
been, inserted in the Constitution, whether there
had been any slaves in the country or not, so long
as it was considered important to collect debts of
THE ARGUMENT.
83
TO
those who might leave their employers for different
parts of the country; and, in one so extensive as
this, it might have been done to the employer's
detriment; and as, according to the general rule of
nations, they do not give up their inhabitants to
any other without special laws on the subject, it
might have been thought necessary that a perfect
understanding on this subject should be had among
the States, and that those bound or held to service
in any one State, if they should leave that service
and flee into another, if claimed as those that
were held, should be given up; but even then not
until the party who claimed should prove the ser-
vice or labor was due. It may be well to observe,
that, in that article which provides for the appor-
tionment of the representatives and direct taxes,
" those bound to service" were to be reckoned
among the freemen, and as equal to them in
determining the number to be chosen, and the
amount to be raised; that this class of people,
in that day, was so numerous as to be taken notice
of independent of those held as slaves. If those
bound to service” was meant to be in contradistinc-
tion to the "three fifths of all other persons,” why
may not this section allude to them? For ourselves,
we perceive no intrinsic difference in the meaning
of the two words “bound" and "held," when ap-
plied to those in servitude, saving that, in using the
word “bound," there seems to be some obligation
attached to both parties, while there appears to be
none in the word "held. A person may hold
a thing without his possessing any right for so
84
THE ARGUMENT.
doing, and we believe this distinction was noticed
at the time. But when the expression, “to whom
such service or labor may be due," was added, it
gave to the expression "held” all the meaning of
the word "bound,” or, otherwise, there can be no
sense to the expression; consequently we should
give the same meaning to both words. But, to say
a slave owes any thing, we must give up the prin-
ciple he is a slave, because, according to the laws
of slavery, the slave cannot own any thing, and,
consequently, cannot owe any `thing: he is a
thing; he owns and owes nothing. But, if it is
said this paragraph was inserted in the Constitu-
tion in reference to slaves, we answer, we have no
doubt those who held, slaves attempted to intro-
duce an article whereby they could reclaim any
of their pretended (we say pretended) bondmen,
let him flee to what part of the Union he might;
but they were foiled in their attempt; they
could not, in this instance, get the convention to
grant them their wish. The person alone to.
whom service was owed was permitted to reclaim
a runaway, even as we now permit a person to
reclaim the service of any one who is bound or
held as an apprentice, or had contracted for a cer-
tain amount of labor for a certain compensation ;
and that this language might and should be so
construed, is somewhat evident by the similar
language in the article alluded to above. We
therefore think nothing in favor of slavery can be
made out of this clause, according to the true prin-
ciples of interpretation. It only shows how hard
THE ARGUMENT.
85
some persons tried to mar the face of the Constitu-
tion without being able to succeed. And that this
was the meaning intended to be attached to this
phrase we think there can be no doubt; for it
should be borne in mind that “ Conditional servi-
tude, under indentures and covenants, had from the
first existed in Virginia. The servant stood to his
master in the relation of debtor, bound to discharge
the cost of emigration by the entire employment
of his powers for the benefit of his creditor;"1 and
though there was more or less oppression under
this system, and many Englishmen, Scotch, and
Irish were sent here in opposition to their own
wishes, yet they differed from slaves in the "dura-
tion of their servitude," and "the laws of the
It has been said the amendment that was made
to this article goes to prove that slaves were meant,
and that its bearing is now different from what it was
as originally introduced; but we do not perceive it
alters the force of the construction of the passage
as we have given it; that is, that it was people
that owed service, and not slaves, that were meant ;
and, if so, it explains the reason (and we cannot ac-
count for it on any other) why Franklin and his
associates, who did all they could to oppose slavery,
let this section pass without opposition. But it may
be objected, as we have said, that the sentence "held
to service or labor " has a different meaning from the
expression “ bound to service,” and that the com-
11
:
Bancroft's History of the United States, vol. i. p. 176.
86
.
.
RGUMENTTHE ARGUMENT.
-
!
mittee of revision made the alteration in the
original article. for the purpose of making the
slaveholder more secure, and that their striking
out the words “justly claiming" renders it more
certain. But, when we consider the words “to
whom such service or labor may be due" were
added, they place the subject on its true basis, that
is, of debt; and a debt cannot be contracted with-
out the consent of both parties. Consequently
they did not. succeed in their wishes, though the
slaveholder afterwards proceeded, and the magis-
trates in the free States very unjustly, as we think,
have allowed them to pursue their unlawful and
vile purposes, without ever bringing up this ques-
tion of debt, the very question on which their
whole claim can constitutionally rest.
According to the Madison papers, Mr. Butler
and Mr. Pinckney, from South Carolina, moved
"that fugitive slaves and servants be delivered up:
like criminals : " this being objected to, Mr. Bụtler
moved to insert the following : “If any person
bound to service or labor in any of the United
States shall escape into another State, he or she
shall not be discharged from such labor or service
in consequence of any regulation subsisting in the
State to which they escape, but shall be deliv-
ered up to the person justly' claiming their service
or labor; which was agreed to nem. con."
But when the Constitution came to be revised,
this resolution, besides the other amendments
made to it, had the words - rightfully claiming "
stricken out, and the words “on claim of the party
THE ARGUMENT.
87
:
to whom such labor or service may be due " add-
ed; thereby, instead, as we have seen it asserted,
of retaining the point of the original resolution,
nullifying its effect when applied to one held in
bondage, against his own consent, and placing it,
as it should have been placed, on account of
debt: consequently, no man should be given up,
unless the debt of service or labor is proved.
. Section 4th of the same article has this expres-
sion :
“ The United States shall guarantee to every State in
this Union a republican form of government, and shall
protect each of them against invasion, and, on application
of the legislature or executive, (when the legislature: -
cannot be convened,) against domestic violence.”
A question here arises: what is a republican
form of government ? · Its usual acceptation is,
when the people make their own laws, through or
by their representatives. The question recurs,
then, is the colored man of this country repre-
sented, or can he be, in a slaveholding State, by
conforming to any laws or rules the legislature of
any of these States prescribes ? We believe not;
he, as we have said before, is considered a thing,
and therefore is thrown without the pale of
citizenship, and is under a most tyrannical gov-
ernment. He is denied this republican form of
government, which the Constitution guarantees
to him; and consequently the laws of these
States, which impose these disabilities, are null,
and should be of no effect. Let it not be said
Greece and Rome held slaves, though they had a
88
THE ARGUMENT.
republican form of government, and therefore it is
competent for the American citizen to hold them,
and yet continue their republicanism. To this we
object, as those only, and their descendants, were.
slaves who were taken in war; they were made
slaves rather than to destroy or imprison them;
they were considered enemies to the state: the
negro has never been a prisoner of war to this
after all, has the Christian American citizen no
better model for his conduct and his mode of gov-
ernment than pagan Greece and Rome? We think
he has, or ought to have.
Article q of the amendments: “In suits of
common law; when the value in controversy shall
exceed twenty dollars, the right of trial by jury
shall be preserved; and no fact tried by a jury
shall be otherwise reëxamined in any court of the
United States than according to the rules of the :
common law."
Now, admitting a person can be held in slavery,
if his value is considered above twenty dollars, he
certainly, according to this article, should have his
case tried by a jury, instead of being delivered up
simply by a hearing before a magistrate, as has
been universally the case when he has been
claimed; which would be, if it was merely a
question of dollars. and cents; most clearly a vio-
lation of the Constitution, and which ought not to
be suffered. How much more, then, ought it not
to be suffered, when a man's liberty is involved! :
· This closes all, so far as we can conceive, that ..
1
THE ARGUMENT.
89
has reference to, or has a bearing on, the subject
of slavery in the Constitution; and we have al-
ready commented on the 4th, 5th, 8th, and 11th
articles of the amendments; and we know not it
is necessary, in this place, to say any thing more
in regard to them. Mr. Alvan Stewart has very
fully commented on the 5th article of the amend-
ments, which can be seen by reference to the
report of his argument on this subject before the
legislature at Albany, N. Y. We will observe,
however, one of these articles of amendments was
introduced into the Massachusetts convention for
the very purpose of having a bearing on slavery,
as we shall hereafter show.
Upon a review then of this instrument, 'with
these amendments, we cannot but come to the
conclusion that each and every man in this coun-
try is by the Constitution free, and that, save only
those who reside in the Indian Territories, each
and every man is bound, individually and collect-
ively, by this instrument, to protect each and all in
their inalienable rights, there being no exception to
any one, be he of what clime or origin he may: it
is enough to say he is an inhabitant of the United
States or its Territories, and that is sufficient to
constitute him a freeman.
8*
CHAPTER IV.
TO SUSTAIN THE ARGUMENTS MADE IN THE PREVIOUS
CHAPTER, QUOTATIONS ARE MADE, SHOWING THE
CHARACTER OF THE PEOPLE WHO CAME TO SETTLE
THE COUNTRY.
he courts.
HAVING now gone through with our criticisms
on the Constitution, and our remarks upon what
we consider the principles upon which it was
founded, we now, for a further illustration, and to
show our ideas are not wholly unsupported, pro-
pose to quote from the language of some of the
men who discussed this document before its ratifi-
cation by the people, to ascertain if they did not
and must not have known how fully the subject
of slavery was under the power of congress, or
that of the courts.
We will, however, in the first place; adduce
some testimony from the early history of the coun-
try, to throw light upon, and to exemplify, if pos-
sible, in a clearer manner the position we have
taken; and, although some of the quotations ap-
parently may not have a bearing upon the subject,
yet they will all, we trust, serve to keep distinctly
in mind the great principles of liberty, its value,
and the steps taken by our fathers to secure it to
the inhabitants of this country; and as we shall
find they never, from the first moment, lost sight
CHARACTER OF THE FIRST SETTLERS.
91
of it previous to the adoption of the Constitution,
so they did not do it at that time.
Mr. Bancroft, in his late History of the United
States, observes, ---
“ Zemenes, (1537,) the gifted coadjutor of Ferdinand
and Isabella, the stern grand inquisitor, the austere but
ambitious Franciscan,.saw in advance the danger which
required centuries to reveal, and refused to sanction the
introduction of negroes into Hispaniola, believing that
the favorable climate would increase their numbers, and
infallibly lead them to a successful revolt. A severe
retribution has manifested his sagacity. Hayti, the first
spot in America that received African slaves, was the
first to set the example of African liberty.”'1
. But “the rich returns made by Sir John Haw-
kins, of sugar, ginger, and pearls, for a cargo of
Africans imported into Hispaniola, attracted the
notice of queen Elizabeth," 2 and “she became, in
conjunction with her subjects," "at once a smug-.
gler and a slave merchant;"3 so that, while Sir
John “ bears the odious distinction of having first,
interested England in the slave-trade, and, by his
success, induced his queen to continue the traffic,
it may be some consolation to the people of Eng-
land to reflect they are among the first to restore
1 Bancroft's History of the United States, vol. i. p. 172.
2 Bancroft's History, vol. i. p. 173.
3 Is not queen Victoria, in conjunction with her ministers, a
smuggler, and, conducting like que cn Elizabeth, if not a slave
merchant, something equally as bad, yea, worse,-a public poi.
soner of her fellow-men, in the attempt which she, in conjunction
with them, is now making to introduce opium into China, against
the laws of that country? We cannot but think they are making
themselves obnoxious to both charges.
92
CHARACTER OF THE
ne
those rights which have been so long taken from
the negro.”
While England has been just, and has found, in
her justice, she has not mistaken her true policy,
may not Ainericans be so also ? and, as the same.
author observes, “A ship of one Thomas Keyson
and one James Smith, the latter a member of a
church in Boston, first brought upon the colonies
(1645) the guilt of participating in the traffic in
African slaves,” so may not the people of Boston
take the lead in bringing about a reform, and help
emancipate the descendants of those who were first
brought into bondage by her citizens? and would
it not seem right and proper that they should take
a lively interest in the subject? One would think
they should not be behind the people of that age,
who denounced those who trafficked in slaves, and
who called such “malefactors and murderers," and
that they should act "as Richard Saltonstall, a
worthy assistant, who felt himself moved, by his
duty as a magistrate, to denounce the act of steal-
ing negroes, as expressly contrary to the law of
God and the law of the country.” These guilty
men were committed for the offence, and, after
advice with the elders and representatives of the
people, who, "bearing witness against the heinous
crime of man-stealing," ordered the negroes to he
restored, at the public charge, to their native coun-
try, with a letter expressing the indignation of the
general court of their wrongs. And in 1652, when
it was perceived “that the people of Warwick and
Providence were disposed to buy” negroes, “to
FIRST SETTLERS OF THE COUNTRY.
93
hold them as slaves forever," "it was enacted they
should not be so held ;? but, at the end of ten
years, they should be set free; and if any one sold
them to be held as slaves a longer time, they should
forfeit to the colony forty pounds, which was twice
the value of the slave at that time.”
After speaking of the law relating to marriages,
he observes, -
“ The benevolence of the early Puritans appears from
other examples. Their thoughts were always fixed on
posterity. Domestic discipline was highly valued; but,
if the law was severe against the undutiful child, it was
also severe against the faithless parent. The slave-trade
was forbidden, under the penalty of death.”.
“The early laws did not permit any man to be kept
in prison for debt, except when there was some appear-
ance of some estate which the debtor would not produce.
Even the brute creation was not forgotten; and cruelty
towards animals was a civil offence. The sympathies of
the colonists were wide; a regard for Protestant Germany
is as old as emigration; and, during the thirty years'
war, the whole people of New England held fasts and
offered prayers for the success of their Saxon brethren.” 2 .
66 When the executive council of state in England
(1650) had granted to Mr. Coddington a commission for
governing the island within the jurisdiction of Rhode
Island, Mr. Williams, through the agency of Sir Henry
Vane, got the commission vacated, and the town-meeting
of Providence made him the following address : “From
the first beginning of Providence colony you have been
a noble and true friend to an outcast and despised people.
Bancroft's History of the United States, vol. 1. p. 173.
2 Bancroft's History, vol. i. p. 466.
94
CHARACTER OF THE
We have ever reaped the fruits of your constant loving-
kindness and favor. We have long been free from the
iron yoke of wolfish bishops. We have sitten dry from
the blood spilt by the wars in our native country. We
have not felt the new chains of Presbyterian tyrants ;
nor, in this colony, have we been consumed by the over-
zealous fire of the (so called) godly Christian magistrate.
We have not known what an excise means; we have
almost forgotten what tithes are. We have long drunk
of as great liberties as any people that we can hear of
under the whole heavens. When we are gone, our pos-
terity and children after us shall read in our town records
your loving-kindness to us, and our real endeavor after
peace and righteousness."" ?
Good foundation these for making a population
to guarantee slavery !
Speaking of the population of Virginia, Mr. Ban-
croft remarks, —
“But the distinctions of society were more marked. by
the character of the plebeian population of Virginia.
• Many of them had reached the shores of Virginia as
servants, doomed, according to the severe laws of that
age, to a temporary servitude. Some of them even were
convicts; but it must be remembered the crimes of which
they were convicted were chiefly political. The number
transported to Virginia for social crimes was never con-
siderable, - scarcely enough to sustain the sentiment of
pride in its scorn of the laboring population, certainly
not enough to affect its character. Yet the division of
society into two classes was strongly marked, in a degree
unequaled in any northern colony, and unmitigated by
public. care for education. The system of common
Bancroft's History of the United States, vol. i. p. 428..
FIRST SETTLERS OF THE COUNTRY.
95
schools. was unknown. Every man,' says Sir William
Berkley, in 1671, "instructs his children according to his
ability,' — a method which left the children of the igno-
rant to hopeless ignorance.
“ The instincts of aristocracy dreaded the general dif-
fusion of intelligence, and even the enfranchising influ-
ence of the preaching of the ministers: “The ministers,
continues Sir William, in the spirit of the aristocracy of
the Tudors, should pray oftener, and preach less. But
I thank God there are no free schools nor printing; and
I hope we shall not have these hundred years; for learn-
ing has brought disobedience, and heresy, and sects, into
the world, and printing has divulged them, and libels
against the best government. God keep us from both.”” ]
A wish many, we suspect, even in Virginia,
begin to think has been brought too literally to
pass. But Mr. Bancroft continues :
.66 Thus, in addition to the difficulties which the de-
graded castes of servants encountered in their endeavors
to lift themselves into distinction, the power of the gov-
ernment was exerted to depress whole classes of society.
We rightly abhor the envy which delights in debasing
excellence; it is a still greater crime against humanity,
to combine against the masses in their struggle for intel-
lectual and social advancement.
“Still, servants were emancipated when their years of
servitude were ended ; and the law was designed to se-
cure and hasten their enfranchisement.”
“The facility of escape compelled humane treatment
to white servants."
6. Towards the negro, the laws were less tolerant..
The statute which declares who were slaves followed
Bancrofl's History of the United States, vol. i. p. 191.
96
CHARACTER OF THE
the old idea long prevalent through Christendom: “All
persons, not being Christians, imported into this country
by shipping, shall be slaves.' Yét it was added, “Con-
version to the Christian faith does not make free."."'
. In reading such passages, one can hardly help
exclaiming, how little was, and even is, Christian-
ity understood! But he says, -
“The early Anglo-Saxon rule interpreted every doubt-
ful question in favor of liberty - declared the children
of freemen to be free. Virginia was humane towards
the white race -- was severe towards the negro. Doubts
arose if the offspring of an Englishman by a negro woman
should be bond or free; and the rule of the Roman law
prevailed over the Anglo-Saxon : the offspring followed
the destiny of its mother.” .
A greater barbarity could not be inflicted, as we
have some where else remarked. The passing of
the children, by the ancient heathen nations,
through fire, in the worship of Moloch, is not to
be compared to it in iniquity.
“ Enfranchisement of the colored population was
not encouraged. The female slave was not sub-
ject to taxation; the emancipated negress was
tithable.” “The death of a slave was not ac-
counted a felony, since it cannot be presumed
(such is the language of the statute] 'that pre-
pensed malice, which alone makes murder felony,
should induce any man to destroy his own estate.'
The legislator did not understand human passions.
No such opinions now prevail. Finally, it was
made lawful for persons pursuing fugitive colored
slaves to wound or even to kill them ;' the master
FIRST SETTLERS OF THE COUNTRY.
97
D
was absolute lord of the negro,' (1672.) After
a long series of years the institution of slavery
renewed a landed aristocracy, closely resembling
the feudal nobility; the culminating point (1705)
was when slaves were declared to be real estate,
and (1725) might be constituted adscripts to the
soil.'"
From these circumstances, Mr. Bancroft attrib-
utes the aspirations of the people of that State to
the government of the country, and, from the
developements that are now making every day,
we may add, the anxiety now exhibited by our
southern people to rule the land may be attributed
to the same unhallowed source; and if the people
of the North do not awake from that lethargy
which seems to hang over a great portion of the
people, the same causes that operated to create an
aristocracy at the South will, before they are
aware, bind them with fetters which will take
more than a Hercules to sever; and this continent,
instead of being what our fathers designed it -a
home for the oppressed, and a dwelling-place for
the free — will be but the prison-house for the slave
and that of the lordly tyrant, where each will
dread the other's presence, and that of ravening
wolves will be the characteristic of its inhabitants.
In 1685, during the Monmouth rebellion, many
of the convicts were sent to this country, and,
“such was the demand for labor, convicts and
laborers were regularly purchased and shipped to
the colonies, where they were sold for indented
servants: the courtiers round James II. exulted in
UU
' 9
98
CHARACTER OF THE
the rich harvest which the rebellion promised, and
begged of the monarch frequent gifts of their
condemned countrymen. Jeffers heard of the
scramble, and indignantly addressed the king :
'I beseech your majesty, that I may inform your
majesty that each prisoner will be worth ten
pounds, if not fifteen pounds, apiece; and, sire, if
your majesty orders as you have already designed,
persons that have not suffered in the service will
run away with the booty. At length the spoils
were distributed. They were in part persons of
family and education, accustomed to elegance and
ease. Take all care,' wrote the monarch, under
the countersign of Sunderland, to the government
~
· years, at least, and that they be not permitted in
any manner to redeem themselves by money or
otherwise, until that term be fully expired. Pre-
pare a bill for the assernbly of our colony with
such clauses as shall be requisite for this purpose.'
No Virginia legislature sanctioned such malice,
Perhaps it may be well to stop here and note
there were, in Virginia at least, other bondmen
beside negro slaves; and the fact of there being
such men, and also those who had sold their time,
and, consequently, who were indebted to the in-
dividual who had bought it, suggested to the
minds of the framers of the Constitution the word-
ing of the clause that relates to the running away
of a person from service, and in strict language can
be applied to none other. Whatever may have been
FIRST SETTLERS OF THE COUNTRY.
99
1
U
the intention of some, or however this language
may have been construed since the Constitution
has been adopted, the language cannot in any way
be applied to the slave; for, as we have said before,
he is a thing; he possesses and can possess nothing;
consequently he cannot owe any thing; and that
it was in view of these facts the clause was per-
mitted to pass. Consequently, whether a slave
was brought from the South to the North by his
master, or came of his own accord, he could or
should not be treated otherwise than as a freeman,
possessing all the rights of a freeman, so long as he
conducts himself with propriety, and has entered
into no contract with his master for services to be
rendered. These, however, are but the views of
a private citizen, and they may be of little worth.
We, however, should be inclined to treat the
planter as the Jew of Venice was treated, and say
to him, if a pound of flesh is really owed to you,
take it, but do not spill a drop of blood; step not
beyond the written language. We do not make use
of this language in the spirit of caviling, or in a
spirit of dishonesty, to get rid of the obligations
that are properly imposed upon us, but would
simply apply the language as it would be applied
in its ordinary construction. We should not think
it necessary to go out of our way to construe the
language to favor the slaveholder, as we should
have to do did we render it to comply with his
wishes. Let us not be misunderstood. We do
not advance the idea, that this clause of the Con-
stitution was brought forward for the purpose of
100
CHARACTER OF THE
securing the runaway apprentice, or the person
who had sold his time; but, on the contrary, we
do suppose it was advanced for the purpose of
securing the runaway slave; but those who did
not wish to be guilty of this crime, -of returning
a slave to his master, -- not only refused to enter-
tain a direct proposition of the kind, but also an in-
direct one, and so amended the latter by adding the
words “to whom such service or labor may be due,"
as effectually destroyed its character as a clause by
which a runaway slave might be recovered.
In speaking of the settlement of New York, Mr.
Bancroft says, -
“Thúş did various nations of the Caucasian race
assist in colonizing our central States. The African,
also, had his portion of the Hudson. The West India
Company, which sometimes transported Indian captives
to the West Indies, having large establishments on the
coast of Guinea, at an early day introduced negroes
into Manhattan, and continued the negro slave-trade
without remorse. We have seen Elizabeth of England.
a partner in the commerce, of which the Stuarts, to the
day of Queen Anne, were distinguished partners : the city
of Amsterdam did not blush to own shares in a slave-
ship, to advance money for its outfits, and to participate
in the returns. In proportion to population, New York
had imported as many- Africans as Virginia. That. New
York is not a slave State, like Carolina, is due to climate,
and not to. the humanity of its founders. Stuyvesant
was instructed to use every exertion to promote the sale
of negroes. They were imported sometimes by the
way of the West Indies, often directly from Guinea, and
were sold at public auction to the highest bidder. The
average price was less than one hundred dollars. The
FIRST SETTLERS OF THE COUNTRY.
101
monopoly of the traffic was not strictly enforced, and a
change of policy sometimes favored the export of negroes.
to the English colonies. The enfranchised negro might
become a freeholder.”
- With the African came the African institution of
abject slavery ; the large emigration from Connecticut
engrafted on New Netherlands the Puritan idea of popu-
lar freedom,” &c. “Their presence and their activity,
foretold a revolution.” 1 -
William Penn, in a letter to his wife on taking
leave of his family, writes, “Live low and sparing-
· ly till my debts are paid,"' 2 though he wished no
expense to be spared in the education of his chil-
dren; for, by parsimony here, he considered all lost
that was saved ; but agriculture he proposed as their
employment. "Let my children be husbands and
housewives;" evidently meaning, whatever may
· have been his practices respecting the holding of
slaves, that his children should depend upon them-
selves for their own support. It may be asked if
William Penn thought all was lost that was
saved in not instructing his children, what must
have been lost to the country, if he was correct,
by not instructing the children of the African ?
The sum, we think, would be more than twelve
hundred millions of money; and who can doubt
but it has been !
We have before quoted the remarks made by
Mr. Haynes of the character of the people of South
Carolina, and have also spoken of the inhabitants
.
1 Bancroft's History of the United States, vol. ii. p. 303..
2 Bancroft's History, vol. ii. p. 370.
9*
102
CHARACTER OF THE
of North Carolina, and it may not be necessary for
us to go farther in our quotations, to show the.
nature of the population that came to these shores:
Much might be brought from other sources, but we
will make what we have quoted suffice. While
slavery was introduced at an early age by the
aristocracy, including kings and queens, and, like.
alcohol, served to intoxicate the people, and came
very near making them forget the very 'nature of
man, yet the love of liberty continued to increase
and expand in this country, through 'all the vari-
ous conflicts it had to maintain, till, finally, it burst
out in our revolutionary struggle. The Declara-
tion of Independence, as has been said, formed a
new era in the history of mankind; all seemed to
be impressed with the importance of liberty, and
more confirmed in their views. Yet slavery ex-
isted, and what was to be done? Many, no doubt,
were inclined to let it rest, and work out its own
cure as best it might. Others, on the contrary,
were anxious to have it expelled the-land, sensible
of the inconsistency which they as a people ex-
hibited while these violations of man's rights con-
tinued. When first introduced, like spirituous
drinks, few were sensible of the evils that might
result; and, while the practice appealed to the
şelfish principle of our nature, many gave way to
this feeling, and were willing to let future con-
sequences take care of themselves.
It has been remarked, the first cargo of slaves
ever brought into this country arrived in Virginia
on the same day that the Pilgrims arrived on
FIRST SETTLERS OF THE COUNTRY.
the shores of Plymouth; and the Dutch captain
who brought, could not find a market for them,
and, upon his refusing to take them away, the
people at last took pity at their forlorn situation,
and giving a small compensation, received them
to their houses. Hence arose that mighty evil,
that is now threatening destruction to our social
institutions.
CHAPTER V.
THE PROCEEDINGS OF THE NATIONAL CONVENTION.
S
We now turn to the convention that formed the
Constitution, and to the proceedings of the several
State conventions, and also to some remarks taken
from Mr. Wirt's life of Patrick Henry, and from
the Federalist, all tending to show that, while our
fathers came to this country for freedom, they
meant to transmit this blessing to posterity; and
that they did, for the most part, think they had
attained this object, and that what they did not
accomplish themselves, they left their children to
perform. We will, however, observe, that, in these
debates, it will be noticed there was a party who
were for a strong government, and another party
who were jealous for our. State rights, and who
feared a consolidated government. Whether those
who wished for a strong government thought the
people were really unable to take care of them-
selves, and, consequently, required the strong arm
of the law to preserve the peace, &c. or, being
conscious they meant, or wanted to produce, such
a state of things as would make one portion of the
community dependent on the other, and thereby
create a jealousy and a distrust in the breast of
different portions of society against each other,
PROCEEDINGS OF NATIONAL CONVENTION.
making a powerful government necessary, we will
not decide ; perhaps both reasons entered into the
breast of some, and determined them in their
course of action. But, on the whole, a sincere
desire is manifested to do what they thought was
for the best good and interest of the country. It
appears the members of the convention, from
South Carolina and Georgia, were alone instructed
on the subject of slavery; and it was through
their influence the slave-trade was not immedi-
ately abolished, and, if we can judge, that any
equivocal expressions on the subject of slavery,
were introduced into the Constitution. The Vir-
ginia delegates, in the first place, received instruc-
tions to use their exertions to have the trade
abolished; but they were, for some reason or other,
withdrawn.
South Carolina and Georgia, therefore, have the
unenviable distinction of having been the cause of
the continuance of slavery, or, rather, that there
was no direct action of the convention on the sub-
ject. Since, then, having gained some points, they
have taken advantage of these to effect their
whole object, and they would now try to make us
believe the whole government was made for them,
and that they have a right to do with it as they
think proper; and, by combining their action, they
have been enabled to effect their purpose ; and,
while our government has been apparently a free
one, it has, for the most part, been ruled by the
slaveholder's influence. Hon. John Q. Adams has
said every important question has been decided by
106
PROCEEDINGS OF
majorities less than the number of representatives
on the floor of congress, in consequence of slaves
being represented ; and we have suspected he
lost his election because he would not bend to
the dictation of Georgia on the subject of her
Indian difficulties, and that this was the cause
of the expression, that "his administration
must be put down, if as pure as the angels of
light.”
It has been often asked, how happens it slave-
holders have always carried their point, when
there has been a majority of members from the
free States ? The best solution, besides that the
South have always been united on subjects that
have affected their interest, while the North has
been divided, was once given us by a lady; it was
this: — The slaveholders, being an independent
community by themselves, freed from the necessity
of toil, each and all of them being masters, they
could bear the utmost democracy; because, each
being a lord, they wanted none higher than them-
selves. They could afford, so long as slavery ex-
isted, to be extremely democratic, because they
would not be driven to labor. They had a class
below them; they therefore could always appeal
to the democratic feeling at the North, and get a
true response; while those at the North possessing
an aristocratic feeling, knew the principles they
advocated were destructive to their interest, they,
possessing no bondmen, and depending upon legis-
lative enactments to maintain their dignity, con-
stantly found themselves in opposition to the priv-
A
THE NATIONAL CONVENTION.
107
ileged class at the South : hence there has always
been a division. But we trust our people are be-
ginning to open their eyes to the nature of slavery,
and, perceiving it has a tendency to reduce all the
working classes to the same state, they will put
forth their power, and check its pretensions, before
it is so fastened on the country that they will be
unable to break its chains; and, as far as in us
lies, we would now warn them, if they do not lay
aside the foolish prejudices they have against the
colored race, and come forward, with united reso-
lutions, to put an end to so iniquitous a system
while it is now in their power, they must not
complain if they themselves, or their children,
should be brought under the same system of op-
pression. They must help free their brother man
from the yoke, or else have it placed upon their
own necks. We think this is evident, and that
there is no alternative. But to return to our ex-
tracts from the Secret Proceedings of the Conven-
tion that formed the Constitution of the United
States, including some taken from a speech deliv-
ered by the Hon. Luther Martin before the legis-
'lature of the State of Maryland, who was called
upon, after his return from the convention held in
Philadelphia, 1787, by the legislature of that State,
to give an account of those transactions in which"
he “had had a share.” In this speech, Mr. Martin
observes, —
1 To bear us out in the supposition that some change of the kind
has been anticipated, we can now appeal to the Inaugural Address
of President Harrison.
108
PROCEEDINGS OF
“The delegates of Delaware were expressly instructed
to agree to no system which should take away from the
States an equality of suffrage, secured by the original
articles of confederation.” “ The object of Virginia and
other large States to increase their power and influence
over others did not escape observation.”l
A number of propositions, in the form of resolu-
tions, were proposed to the convention for their
consideration, as a basis on which to form a new
government, and were submitted to a committee,
who, among others, reported the following:
667th. The right of suffrage in the first branch of the
legislature ought not to be according to the rules of rep-
resentation, namely, in proportion to the whole number
of white and other free citizens, and inhabitants of every
age, sex, and condition, including those bound to service
fór a term of years, and three fifths of all other persons
not comprehended in the foregoing description, except
Indians, not paying taxes in each State.” .
“ 16th. That a republican constitution, and its existing
laws, ought to be guaranteed to each State by the United
States.” 2
In discussing these among other propositions, it
was argued the small States would not agree to
representations founded on numbers; if they did
they would be overwhelmed; “that slavery was
the worst that could ensue, and we considered the
system proposed the most complete, most abject
systern of slavery that the wit of man ever devised,
under the pretension of framing a government for
free States; that we never would submit to pre-
sent certain evils in dread of a future, which might
1 Secret Proceedings, p. 13. 2 Secret Proceedings, pp. 14 and 16.
THÈ NATIONAL CONVENTION.
109
be imaginary ; that we were sensible the eyes of
the country and of the worlą were upon us," &c. ;1
that, while they were willing to form a strong
and energetic federal government,” they were op-
posed to consolidation, and they wished “the
world at large" should “judge " who “best un-
derstood the rights of freemen and free States."
They did not mean to give up the independency
of the States, and give the large States a weight
in the Union in proportion to the number of their
inhabitants. The argument was, that each in-
dividual in the community, when he enters into
society, independent of wealth, talent, or strength,
had equal rights; and if, because of any of these
distinctions, one should have “ more votes than
another, it would be inconsistent with the freedom
of that other, and would reduce him to slavery ;" 2
and consequently it would be the same with the
States.
On that part of the Constitution which allowed
the importation of slaves till the year 1808 there
was much diversity of opinion, and the represen-
tatives from South Carolina and Georgia asserted
that their States would never agree to a system
· that put it in the power of the general govern-
ment to prevent the importation of slaves, and
that they, as delegates from those' States, must
withhold their assent from such a system." 3
They had made this assertion because eight of
1 Secret Proceedings, p. 30. 2 Secret Proceedings, p. 24.
3 Secret Proceedings, p. 63.
10
110
PROCEEDINGS OF
4
the States had decided they would not consent to
have a general provision, as reported by the com-
mittee of detail, putting it out of the power of
congress from ever prohibiting the importation of
slaves, “ without confining it to any particular
period.” Mr. Martin says they were willing
to agree to this clause as it now stands, but
the " same reasons which caused them to strike
out the word 'national,' and not admit the
word 'stamps,' influenced them here to guard
against the word "slaves. They anxiously
sought to avoid the admission of expressions
which might be 'odious' to the ears of Ameri-
cans, although they were willing to admit into
their system those things which the expressions
signified." 1 When, therefore, the convention had
determined not to accept the report of the com-
mittee, three States only voting in favor of it, and
the delegates from Georgia and South Carolina
saying their States would not agree to a system
that gave it in the power of the general govern-
ment to put a stop to it, “A committee of one
member from each State was chosen by ballot to
take this part of the system under consideration,
and to endeavor to agree upon some report, which
would reconcile these States :" to this committee
was also referred the following proposition, which
had been reported by a committee of detail, to
wit : “ No navigation act shall be passed without
the assent of two thirds of the members present in
'Secret Proceedings, p. 63.
THE NATIONAL CONVENTION.
111
each house,"1-a proposition which the “ staple
and commercial States” were solicitous to retain,
lest their commerce should be placed too much
under the power of the Eastern States, but which
the latter were as anxious to reject. “This com-
mittee," of which Mr. Martin was one, “met and
took under consideration the subjects committed
to them.” He says he “ found the eastern mem-
bers, notwithstanding their aversion to slavery,
were very willing to indulge the Southern States
- at least with a temporary liberty to prosecute the
slave-trade, provided the Southern States would,
in their turn, gratify them by laying no restriction
on navigation acts; and, after a very little time,
the committee, by a great majority, agreed on a
report, by which the general government was to .
be prohibited from preventing the importation of
slaves for a limited time; and the restrictive clause
relative to navigation acts was to be " omitted.”
Here are some of the considerations of that
compact of which we have heard so much; and,
however disgraceful it might have been, let it be
borne in mind the contract, so far as they are con-
cerned, is fulfilled, the consideration has been
taken. But let us observe here, we consider this
crying out compact as one of their ruse, of
which the South has proved herself sufficient
master, in order to frighten the North into her
proposals, -- not because she cares about the par-
1 Secret Proceedings, p. 64.
112
PROCEEDINGS OF
ticular measures she proposes; but, wishing to.
prevent the mind of the North from taking into
consideration the situation of the slave, and know-
ing the North is adverse to constant changes, and
fluctuations in her commercial pursuits, and that
the South is not advancing in so rapid a manner
in her improvements, in her jealousy she presses
her undertaking, till she gains what she thinks is
her object, and then some one steps in to make a
compromise. We have seen so much of this we
begin to grow tired and sick; and we trust the
people of the North, if we are correct in our sur-
mises, " will be able to stand in the evil day," and
not bow down to every golden calf that may be
set up.
But Mr. Martin goes on to observe, -
6. This report was adopted by the convention, but not
without considerable opposition. It was said we had
just assumed a place among independent nations in con-
sequence of our opposition to the attempts of Great
Britain to enslave us; that this opposition was grounded
upon the preservation of those rights to which God and
nature had entitled us, not in particular, but in common
with all the rest of mankind ; that we had appealed to
the Supreme Being for his assistance, as the God of
freedom, who could not but approve our efforts to pre-
serve the rights which he had thus imparted to his crea-
tures; that now, when we had scarcely risen from our
knees, from supplicating his mercy and protection in
forming our government over a free people, a govern-
ment formed pretendedly on the principles of liberty,
and for its preservation, in that government to have a
provision, not only of putting out of its power to restrain
THE NATIONAL CONVENTION.
113
and prevent the slave-trade, even encouraging that most
infamous traffic, by giving the States the power and
influence in the Union in proportion as they cruelly and
wantonly sported with the rights of their fellow-creatures,
ought to be considered as a solemn mockery of, and an
insult to, that God whose protection we had thus im-
plored, and could not fail to hold us up in detestationig.
and render us contemptible to every true friend of liber-
ty in the world. It was said that national crimes can
only be, and frequently are, punished in this world by
national punishments, and that the continuance of the
slave-trade, and thus giving it a national character,
sanction, and encouragement, ought to be considered as
justly exposing us to the displeasure and vengeance of
him who is equally the Lord of all, and who views with
equal eye the poor African slave and his American
master!
“It was urged that, by this system, we were giving
the general government full and absolute power to regu-
late commerce, under which general power it would
· have a right to restrain, or totally prohibit, the slave-
trade: it must, therefore, appear to the world absurd
and disgraceful to the last degree that we should except
from the exercise of that power the only branch of
commerce which is unjustifiable in its nature, and contra-
ry to the rights of mankind. That, on the contrary, we
ought to prohibit expressly, in our Constitution, the
further importation of slaves, and to authorize the gene-
ral-government, from time to time, to make such regu-
lations as should be thought most advantageous for the
gradual abolition of slavery, and the emancipation of
the slaves already in the States.
That slavery is inconsistent with the genius of re-
publicanism, and has a. tendency to destroy those princi:
ples on which it is supported, as it lessens the sense of.
10*
114
PROCEEDINGS OF
the equal rights of mankind, and habituates to tyranny
and oppression. It was further urged that, by this sys-
tem of government, every State is to be protected both
from foreign invasion and from domestic insurrections ;
and, from this consideration, it was of the utmost im-
portance it should have the power to restrain the impor-
tation of slaves, since in proportion as the number of
slaves increased in any State, in the same proportion is
the State weakened and exposed to foreign invasion and
domestic insurrection; and by so much less will it be
able to protect itself against either, and therefore by
so much, want aid from, and be a burden to, the
Union.
6.5 It was further said, that, in this system, as we were
giving the general government power, under the idea of
national character, or national interest, to regulate even
our weights and measures, and have prohibited all possi-
bility of emitting paper money, and passing insolvent
laws, &c. it must appear still more extraordinary that
we prohibited the government from interfering with the
slave-trade, than which nothing could more affect our
national honor and interest.
“ These reasons influenced me, both in the committee
against the clause, as it now makes part of the system.” 1
Mr. Martin thought by continuing the traffic
"we should become indifferent to the common
1
sidered established, they had already become less
sensible to these rights, and that in those States
where the trade had already been prohibited, when
they found that in their national character they
Secret Proceedings, p. 64.
THE NATIONAL CONVENTION.
115
must 'share in its disgrace,' they would also wish
- to share in its benefits.?"
We will observe, here, if there was such an
opposition to the continuance of the slave-trade for
twenty years, when the Confederation had no
control over it, and it was then in the power of
each State to continue it to an indefinite extent,
and this power was taken from them, and the
whole subject was then placed, as is here intimat-
ed, in the power of congress, to put a stop to it in
that time, and even a proposition to make prep-
aration for the emancipation of the slaves already
in the country, - can it be said that these men, or
even a majority in the convention, went to work
to guarantee its continued existence ? No; the ex-
cuse was, there was a considerable property en-
gaged in the trade, and more laborers were wanted
at the South; and, by a mistaken policy, or å
determined wickedness on the part of some, it was
suffered to exist, in order that the one might be
supplied, and the other have time to be with-
drawn, and placed where it could be lucratively
employed. No guaranty, we are assured, could
have been obtained, or would have been given;
and, if the members of the convention would have
done it by any of their acts, we shall by and by
see the people, by the recommendation of their
conventions, and the action of congress, put a veto
upon it'; and it was urged, in one of these con-
ventions, as a reason why the Constitution should
be adopted, that it had given congress a power
over the subject that was not possessed under the
116
PROCEEDINGS OF
Confederation. Without, however, stopping here
to argue this point, we will leave the observations
of Mr. Martin, and enter upon those made in the
convention. We will, however, observe, there
does not appear to be any thing reported to have
been said on any of the articles that has special
reference to slavery. Our quotations, therefore,
must comprise those observations only that speak
of the general object for which the government
was formed. The report of the proceedings of the
convention was made by Chief Justice Yates, of
New York, for his own use, and was copied from
his papers, after his death, by Mr. John Lansing,
Jr. There were four propositions made for the
consideration of the convention. Mr. Edmund
Randolph, of Virginia, offered a series of resolutions
as principles on which the Confederation might be
amended. In his ideas of government, he would
include freemen only. Mr. Charles Pinckney
(S. C.) offered. a draft of a federal government :
in this draſt there is no distinction made; the word
"free" is not used before persons. In Mr. Patter-
son's (N. J.) resolutions it was ; in Mr. Hamilton's
(N. Y.) it was not.
Mr. C. Pinckney is reported to have said on the
4th resolve,
6. It will be necessary to inquire into the situation of
the people of this country. Without this, we can have
no adequate idea what kind of government will secure
their rights and liberties. There is more equality of
rank and fortune in America than in any other country
under the sun; and this is likely to continue as long
THE NATIONAL CONVENTION.
117.
as the unappropriated western lands remain unsettled.
They are equal in rights, nor is the extreme of poverty
· to be seen in any part of the Union.
From this situation he thought we could not
draw any examples from the governments of Eu-
rope; and, there being so few men of fortune, they
could not establish a nobility, and equality of
others would not admit of the distinction; he
therefore “laid it down as a settled principle, that
equality of condition was a leading axiom in our
government.” He thought "commerce could
never interfere with our government, nor give
complexion to its councils." He thought we could
not copy from Greece or Rome; " we differed from,.
the whole. Our situation was unexampled; and
it is in our power, on different grounds, to secure
civil and religious liberty; and; when we secure
these, we secure every thing that is necessary to
establish happiness.”
He thought “there might be three classes in
this country: first, the professional men; second,
the commercial men ; third, the landed interest; "
that the latter would be the governing power,
and the other two would be dependent on them.
: He thought a national goveritment would not suit
them, and, consequently, there would be a mixed
interest; and, in that view, there would “in fact
be but one order.” - Ours must be suitable to the
people, and we were the only people who had
sense enough to appoint delegates to establish a
1, Secret Proceedings, p. 161.
118
PROCEEDINGS OF
general government, and he thought the proposi-
tion from Virginia would satisfy the people. But
a general government must not be dependent on
State government.”
These observations are quoted, not because they
all apply to the case in controversy, but to show
that in them there is a continual looking forward
to an equality of condition, for which they were
aiming, and on which the government was to
be founded.
Mr. Wilson observed, on the same section,
that, —
- The magnitude of the subject was embarrassing ;
the great system of Henry IV. of France, aided by the
greatest of statesmen, is small when compared to the
fabric we are now about to erect. In laying the stone
amiss we may injure the superstructure; and what would
be the consequence if the corner-stone should be loosely
placed ? It is improper that the State legislature should
have the power contemplated to be given them. A
citizen of America should be considered in two points of
view, --as a citizen of the general government, and as
a citizen of the particular State in which he may reside.
We ought to consider in what character he acts in form-
ing a general government. I am both a citizen of
Pennsylvania and of the United States. I must lay aside
my Slabe connections, and act for the general good of the
whole. We must forget our local habits and attach-
ments. The general government should not depend on
State governments. That the powers of peace, war,
treaties, coinage, and regulating commerce, ought to
reside in that government. And, if we reason in this
manner, we shall soon see the impropriety of admitting
THE NATIONAL CONVENTION.
119
the interference of State government into the general
government. Equality of representation cannot be estab-
lished, if the second branch is elected by State legisla-
tures. When we are laying the foundation of a building
which is to last for ages, and in which millions are inte-
rested, it ought to be well laid. If the national govern-
ment does not act on State prejudices, State distinctions
will be lost. I therefore move, that the second branch of
the legislature of the national government be elected by
electors chosen by the people of the United States.” 1
Much division prevailed on this point, and, as it
will be perceived, the convention finally settled
down upon the conclusion that the people, by dis-
tricts in their several States, should choose their
own representatives; making the government, if
any thing, not quite so national as the proposition
made by Mr. Wilson would have it, but yet much
more so than by letting the legislatures of the
State choose them.
Mr. Hamilton, while speaking of the senate, ob-
served, -
“This question has been considered in several points
of view. We are now forming a republican government.
Real liberty is neither found in despotism, or the extreme
of democracy, but in moderate government.” 2 And,
again, “ There can be no truer principle than this, -
that every individual in the community at large has an
equal right to the protection of government." 3
Mr. Madison, in speaking of the manner in
which the different States should vote in con-
se
Secret Proceedings, p. 165. 2 Secret Proceedings, p. 171.
3 Secret Proceedings; p. 186.
120
PROCEEDINGS OF
.
gress, said "he would exclude INCONSISTENT PRIN-
CIPLES, in framing a system of government;"1 it
was difficult to get defects amended; and cited
the case of Virginia and the Dutch as examples,
both of whom found defects in their system of
government, and it was with difficulty. they had
them removed. He observed, “If there was any
real danger, he would give the smaller States the
defensive weapons. But there is none from that
quarter. The great danger to our general govern- .
ment is the great southern and northern interest of
the continent being opposed to each other. Look
to the votes in congress, and most of them stand
divided by the geography of the country, -- not
according to the size of the States." As it was
then, so it is now, and must continue to be, till
slavery shall be done away. This great 'states-
man, from the commencement, saw the danger,
and spoke of it. · State lines, in the great contro-
versies of the country, have been obliterated, and
the great interests of our land have been decided
independently of them. The slave States, ever
true to themselves, have kept constant watch over
their supposed interests, and have wielded the
power they have possessed with such despotic
sway, that they have almost tempted the North
"to come out from among them, and be separate. :)
Mr. Yates and Mr. Lansing, mernbers from New
York, left the convention before it rose.? " They
1 Secret Proceedings, p. 189.
2 In their letter 10 Gov. Clinton, they give two reasons for return-
ing: "1st. The limited and well-defined powers under which they
acted, and which could not, on any possible construction, embrace
THE NATIONAL CONVENTION.
121
had uniformly opposed the system, and, I believe,
despairing of getting a proper one brought forward,
or of rendering any real service, they returned no
more.” 1
The number of those who signed the Constitu-
tion as proposed was thirty-nine. Ten delegates
never attended, and sixteen did not sign that in-
strument, among whom were Elbridge Gerry and
Caleb Strong, of Massachusetts. Rhode Island
sent no delegates.
General Washington, in his letter addressed to
the president of congress, in submitting the consti-
tution the convention had adopted, in his conclud-
ing remarks, says, " That it may promote the last-
ing welfare of the country so dear to us all, and
secure her freedom and happiness, is our most
ardent wish." 2 Has that wish been realized? Have
the three million of slaves now in the country
received any benefit arising from that instrument?
None whatever ; but daily, hourly, are we depart-
ing from the principles he here expressed; and our
land, instead of becoming an abode of freedom and
of happiness, is but the habitation of slavery and
misery to a good portion of her population : thou-
sands are groaning in their chains, and tens of
thousands are bewailing their condition. They
hear the exultation of freedom and of happiness;
an idea of such magnitude as to assent to a general constitution, in
subversion to that of the State. 2d. A conviction of the impracti-
cability of establishing a general government, pervading every part
of the United States, and extending essential benefits to all."
Secret Proceedings, p. 36. 2 Secret Proceedings, p. 267.
11
122
PROCEEDINGS OF
but it passes them by: placed like Tantalus of old,
the 'refreshing water of liberty rises to their lips,
but they are never able to drink of its refreshing
stream; and, unless some come to their relief, they
must, for succeeding ages, die in their distress,
without being able to say, “I was hungry, and ye
gave me ineat; I was thirsty, and ye, gave me
drink; naked, and ye clothed me; sick, and in
prison, and ye visited me.” But we trust they
will not long have to make this complaint, but
that the South, as well as the North, will, when
they become sensible of the cruelties the South is
practising, be induced to render to her citizens that
justice they have a right to demand, and which .
she ought to give; and we shall find, when the
word liberty is expressed in any of our public
meetings, it will not be considered out of place, or
any portion of the hearers manifest signs of dis-
comfiture, as if its sound grated on their ears.
. In giving the above extracts from the Secret
Proceedings of the Convention, it will be observed
there does not appear to be any thing on which
we could at once make up a judgment. The
observations of Mr. Martin explain more fully the
inducements which actuated the different members
than can be gathered from the debates; but, from
what are given to the public, - and we believe we
have given all that was said directly upon the
subject of slavery, either on the one side or on
the other, --- we cannot but deduce the idea that
liberty was to be the basis on which the govern-
ment was to be founded. If other ideas were
THE NATIONAL CONVENTION.
123
advanced or insinuated, none dared openly to ex-
press them; and we have only to regret they have
been expressed louder than a whisper since, and
that it has been thought necessary to calculate the
value of the Union, or, in other words, to establish
an aristocracy upon the ruins of democracy, which
must inevitably be the case, if slavery be much
longer continued.
Mr. Edmund Randolph, in a letter addressed to
the house of delegates of Virginia, upon the subject
of adopting the Constitution, says, in speaking of
the equality of suffrage, &c. ---"
"I hope Virginia will be seconded by a majority of the
States. I hope she will be seconded, first, in causing all
ambiguities to be precisely explained ; then in preventing
the eligibility of the president, — of his power of nomi-
nating the judiciary, and filling vacancies during the
recess of congress; and, second, in taking from him the
power of pardoning treason, in drawing the line between
the powers of congress and of the individual States, in
abridging the power of the senate, in incapacitating con-
gress in determining their own salaries;” and “in limit-
ing and defining the judiciary power."
Whether he saw, in any of the powers he
wished to restrain, any that would bear on the
peculiar institutions of the South, or whether he
thought them detrimental to liberty in general, we
are not able to say; but this we think he might
have seen in the powers given to the judiciary, -a
power sufficient to curb the South in her prosecut-
ing the slave system; and if he did, and was at all
anxious this system should be continued, there were
sufficient reasons for his anxiety on the subject.
. CHAPTER VI.
QUOTATIONS FROM THE FEDERALIST.
We have now passed over the Secret Proceed-
ings of the Convention, which recommended the
Constitution to congress, and, through it, to the sev-
eral States. We have seen, in some measure, the
anxiety that was felt that a Constitution should
be adopted, the objections made, the influence
that slavery exerted, and the attempt made to in-
corporate it into that instrument, and the manner
that attempt was frustrated. This, together with
the struggle between the large States and small
ones, independently of the slavery question, was
almost the only point that produced any protracted
discussion, and prevented any decision at once of
the kind of government to be adopted. On the
part of some, a confederation of the States was
urged, and these desired the old Confederation
should be amended; while those of the larger
States wanted to have a weight in the government
proportioned to their population : this, after long
and laborious discussion, was settled by a com-
promise.
The framing of the language of the Constitu- .
tion, in those parts that are said to relate to slavery,
and have been acted on as such, show what care
QUOTATIONS FROM THE FEDERALIST.
125
was used, and what exertions were made, by those
who were opposed to the obnoxious practice of
holding slaves, to prevent this practice, as a sys-
tem, being incorporated in the body politic. How-
ever great the exertions to the contrary, unless a
complete and entire perversion of the meaning of
words is made, saving in the instance where the
"three fifths of all other persons." was named, (which
may have, or may not have, any meaning at all,)
no person could make the language apply to slaves.;
and, being so, we must suppose the friends of free--
dom gained the day, expecting, though the South
might not give up their slaves immediately, they
would yet so do in a short time. And, although
there was no express provision in the Constitu-
tion as reported, that would give the slave his
rights, yet, if the purposes for which it was adopt-
ed, as expressed in its caption, should be truly
carried into effect, slavery would be destroyed by
them.
We will now make a few quotations from the
Federalist. This book, it is well known, was
written by Mr. Hamilton, and Mr. Madison, for
the purpose of recommending and explaining the
Constitution that had been proposed to the people
of this country for its adoption. It was published
in successive numbers over the signature of
Publius, in the newspapers of that day, and after-
ward they were collected and put into a volume,
having the above title prefixed.
They were written in concert by the gentlemen
named above, who took upon themselves to answer
11*
126
QUOTATIONS FROM THE FEDERALIST..
the objections that were made to the Constitution,
on its being published to the world, with their
attempt to do away any wrong impressions that
might be entertained respecting its object, and the
purposes that induced the convention to promul-
gate it. They undoubedly had much influence at
the time to satisfy the American people of the
good intentions of those who framed it, and the
advantages that might be expected to result from
its being carried into execution.
Great fear was expressed throughout the coun-
try that liberty would be endangered, and power-
ful objections, on that account, were brought
against its adoption. Consequently, great anxiety
was felt by its friends that all the real objections
against it should be answered, and that it should
be made at least to appear as perfect as possible.
These gentlemen, therefore, undertook its defence,
and the various conventions that were called were
undoubtedly more or less influenced in their decis-
ions by these writings. These gentlemen stood
high in the affections of the people, and much
confidence was placed in their judgment.
In these papers, we shall find they asserted
that the foundation principle of this government
was liberty ; that it was for the security of this
that they proposed this system of government.
They believed liberty could not be secured without
there being a power some where, sufficiently great
to keep in check any outbreak arising from the
ambition of individuals, or the turbulence of the
multitude, or attacks from external foes. Whether
7
11
UOTATIONS FROM THE FEDERALIST.
right in these ideas or not, these were the ex-
pressed reasons given why a government for the
whole country, arising directly from the people,
independent of, and in some measure dependent
on, the State governments, should be adopted.
Some of the States, particularly Rhode Island,
had not fulfilled their engagements, or answered to
the requisitions made upon them: there was no
-power to coerce them, and they refrained from
making good the obligations that the country, at
that time, was under, and they feared what might
be the result if such a state of things continued.
Whether these fears were well founded, or not, is
another question ; but such were expressed, and
such, undoubtedly, many entertained. They
therefore exerted themselves to establish a govern-
ment that would have the power to coerce that
justice which would not be rendered without co-
ercion, and that security to individuals in their
lawful and peaceful occupations which might be
liable to be interrupted by lawless and ambitious
men, and to secure them from that rapacity which.
seemed to be the governing policy of many of
the European nations.
As this country might be expected to have ex-
tended commercial relations, it was thought neces-
sary they should be prepared for such exigencies
as might arise in those relations; and, in allud-
ing to this last consideration, Mr. Hamilton re-
marks respecting the memorable struggle for
superiority between the rival houses of Austria
and Bourbon, and between England and Holland
128.
.
QUOTATIONS FROM THE FEDERALIST.
.
for mastery of the seas, where the wars were
urged on by the people against the wishes of the
actual government. Speaking of the wars be-
tween England and France, he says, —
“ The wars between these two'last mentioned nations
have, in a great measure, grown out of commercial con-
siderations; the desire of supplanting, and the fear of
being supplanted, either in particular branches of traffic,
or in the general advantages of trade and navigation,
and, sometimes, even the more culpable desire of shar-
ing in the commerce of others without their consent." I
After speaking of the distracted state of the
Grecian and Roman republics, he cites the argu-
ments which the advocates of despotism have
drawn, not only against the forms of republican
government, but against the very principles of
civil liberty. He says,-
“Happily for mankind, stupendous fabrics reared on
the basis of liberty, which have flourished for ages, have,
in a few glorious instances, refuted their gloomy soph-..
isms. And I trust America will be the broad and solid
foundation of other edifices not less magnificent, which
will be permanent monuments of their error.” 2 .
The question may be asked here, what is the
basis of liberty of which Mr. Hamilton speaks?
Does it consist simply in having a representative
government, where laws can be made by the
people through their representatives, without any
regard at all to the nature of those laws? Does
he mean that when the representatives get to-
13
* Federalist, p. 31.
2 Federalist, p. 45.
QUOTATIONS FROM THE FEDERALIST.
129
gether they may make laws enslaving each and
every individual who has contributed to place
them in power, or any other people, who have had
no hand in placing them there ? and that the
liberty of which he speaks consists only in pre-
venting foreigners from having any control over
their dominions ? and that, while they may lay
ruthless hands on such individuals as they may.
choose, and make them even plantation slaves, to
satisfy their lust for power, they must say to the
powers afar off, "presume not to come near, -
touch not mine anointed, - think not of invading
our territory, our rights of government, for, if you
do, we will bring the whole forces of our govern-
ment to bear, against you?” Are these the pur-
poses of government ? Are these the purposes for
which the government of the United States was
formed? Or was it not rather that the individual,
in his private relations, in his every-day employ-
gion, should be secure in his person? should have
the whole power of the state put in requisition to
save him from having his rights encroached upon, -
either by any other individual, by the government,
the whole object of this government? Is not this
the basis, the proper, the only basis, on which the
civil liberty of the state can rest ? Is there any
other foundation? If the individual is not to be
defended in his lawful employments, wherein
lays his security; wherein has he any civil rights ?
If he encroaches not on the peace and rights of
130
QUOTATIONS FROM THE FEDERALIST.
others, is he not to receive the protection of the
state? Is he not to look to it to guard him from
foes around ? If not so, of what use is the habeas
corpus ? of what use are our courts of justice? of
what avail is all our apparatus to carry on our
internal police? If we rightly judge, it is for the
protection of the individual, and that for his pro-
tection all just governments are formed, whether
danger arises from external or internal foes; and,
if he is not protected, either the government is
founded in fraud, or it is of no use. And if it was
not for the protection of the individual, and the
better to secure the advantages of the combined
action of all the people of the country, to secure to
each and every individual those inalienable rights
which we as a community avowed when we es-
tablished our independence, then was this govern-
ment founded in fraud, let the declaration of the
individuals who proposed and advocated it be what
it may. But, until it can be proved that any class
of people was excluded, we must suppose a ma-
jority of our people included all within our borders
who were to receive protection from the state.
Mr. Madison, speaking of the objection drawn
from the extent of the country, and that the people
did not blindly follow any other nation in their
form of government, but were ready to adopt such
measures as “their own good sense, and the
knowledge of their situation, and the lessons of
their own experience, taught them,” said, —
“ Happily for America, happily, we trust, for the
whole human race, they pursued a new and more noble
n9
i
QUOTATIONS FROM THE FEDERALIST.
131
course. They accomplished a revolution which has no
parallel in the annals of human society. They reared
the fabric of governments which have no model on the
face of the globe. They formed the design of a great
confederacy, which it is incumbent on their successors to
improve and perpetuale. If their works betray imper-
ſections, we wonder at the fewness of them. If they
erred most in the structure of the Union, this was the
work most difficult to be executed ; this is the work
which has been new-modeled by the act of your conven-
tion, and it is that act on which you are now to deliberate
and to decide.” 1
Mr. Hamilton, speaking of the defects in the
Confederation, in relation to the principle of legis-
lation for the States in their collective capacity,
after alluding to the dangers that might arise to
them by “rivalship,” “intrigues of foreign na-
tions,” &c. said, -
“ But, if we are unwilling to be placed in this perilous
situation, if we still adhere to the design of a national
government, or, which is the same thing, of a superin-
tending power, under the direction of a common council,
we must resolve to incorporate into our plan those ingre-
dients which may be considered as characteristic differ-
ence between a league and a government; we must ex-
tend the authority of the union to the persons of the
citizens, -- the only proper objects of government.” ?
Mr. Madison, speaking of the conformity of the
plan to republican principles, observes, -
“ The first question that offers itself is, whether the
general form and aspect of the government is strictly
? Federalist, p. 77.
2 Federalist, p. 82.
132
QUOTATIONS FROM THE FEDERALIST.
republican? It is evident, no other form would be rec-
oncilable with the genius of the people of America, with
the fundamental principles of the Revolution, or with that
honorable determination which animated every votary of
freedom to rest all of our political experiments on the
capacity of mankind for self-government. If the plan of
the convention, therefore, be found to depart from the
republican character, its advocates must abandon it as no
longer defensible.”
After asking the question, what is a republican
government ? and alluding to a number of govern-
ments which were called republics, but were not
really so in fact, he said, -
“It is essential to such a government, that it be de-
rived from the great body of society, - not from any
inconsiderable proportion, or a favored class of it; oth-
erwise, a handful of tyrannical nobles, exercising their
oppression by a delegation of their powers, might aspire
to the rank of republicans, and claim for their govern-
ment the honorable tille of republic;" and that “it is
sufficient for such a government, that the persons admin-
istering be appointed, either by the people or their repre-
sentatives; and that they hold their offices, either during
pleasure, for a limited time, or during good behavior."
He then compares the standard here set up, and
he thinks it conforms to it.
Speaking of the powers with which the Union
would be invested, he says, –
- It were doubtless to be wished that the power to
prohibit the importation of slaves had not been postponed
until the year 1808, or rather that it had not been suf-
Federalist, p. 210.
QUOTATIONS FROM THE FEDERALIST.
133
fered to have immediate operation. But it is not difficult
to account, either for this restriction on the general gov-
ernment, or for the manner in which the whole clause is
expressed. It ought to be considered a great point
gained in favor of humanity, that a period of twenty
years may terminate forever, within these States, a traffic
which has so long and loudly upbraided the barbarism
of modern policy; that within that period it will receive
a considerable discouragement from the federal govern-
ment, and may be totally abolished by a concurrence of
the few States which continue the unnatural traffic, in
the prohibitory example which has been given by so'great
a majority of the Union. Happy would it be for the
unfortunate Africans, if an equal prospect lay before
them of being redeemed from the oppression of their
European brethren.” 1
This, probably, is Mr. Madison's real view of
slavery and its attendant trade. What he may
have afterwards said in the convention of Virginia,
we should be rather inclined to think, arose from
the fear of what might be the political effect, if he
laid open to view, in too palpable a manner, the
effect that the Constitution might have on the
system of slavery, when he found so much oppo-
sition of a certain class of the delegates in that
convention. For we find that he here supposed
that, in the prohibitory steps taken by so great a
majority of the people of the Union, the few States
-- that is, Georgia and South Carolina — would
finally acquiesce in those steps, and that he 'sup-
posed it would be happy for the Africans, if they
P
Federalist, p. 235.
12
.
QUOTATIONS FROM THE FEDERALIST,
OC
UV
had an equal prospect before them of being re-
deemed from the oppression of their European
brethren. Remember that, in the destruction of
the slave-trade, it was generally thought slavery
would cease ; and, if it could be wholly stopped,
it undoubtedly would. What, then, we ask, must
be Mr. Madison's idea of guaranteeing the perpetual
continuance of slavery to the South? It is evident
he never entertained the thought. He undoubted-
ly supposed it would die a natural death, when
the trade ceased.
Speaking of the rule of naturalization, he says,
“ The dissimilarity of the rules of the several States
has long been remembered as a fault in our system, and
as laying a foundation for intricate and delicate questions.
In the fourth article of the Confederation, it is declared
that the free inhabitants of each of these States — pau-
pers, vagabonds, and fugitives from justice excepted —
shall be entitled to all privileges and immunities of free
citizens in the several States; and the people of each
State shall, in every other, enjoy all the privileges of
trade and commerce,' &c. There is a confusion of lan-
guage here which is remarkable. Why the term free
inhabitants is used in one part of the article, free citizens
in another, and people in another, or what was meant by
superadding to all privileges and immunities of free
citizens,' all the privileges of trade and commerce, can-
not easily be determined.” 1
But he says it seems to be an unavoidable con-
clusion, that the free inhabitants of one State shall
enjoy all the privileges of a free citizen in another.
Federalist, p. 239.
QUOTATIONS FROM THE FEDERALÍST.
135
But, as different States have different laws of nat-
uralization, there might be a confusion; and it was
owing to mere casualty there had not been; and,
to remedy any evil that might result from such
expressions, congress very properly had the power
to introduce “uniform rules of naturalization ;
while the right that our citizens had to go into
any of the States was continued, and the word
free before the word "citizen' was stricken:
out;” — another evidence that slavery, so far from
its being guaranteed, was meant to be destroyed.
The same subject of the powers of congress
being continued, he said, -
"In a confederacy founded on republican principles,
and composed of republican members, the superintending
government ought clearly to possess authority to defend
the system against aristocratic or monarchical innova-
tions. The more intimate such a union may be, the
greater interest have the members in the political con-
stitutions of each other, and a greater right to insist
that the forms of government under which the compact
was entered into should be substantially maintained.” 1
This is different language from that held by the
editor of the Boston Quarterly Review, when he
says, because the abolitionists have taken an in-
terest in the welfare of the slave, and would at-
tempt to make the practices of the people of this
country conform to their professions, and fulfil
their obligations to the world, being themselves
implicated in this nefarious business, their action
? Federalist, 244.
QUOTATIONS FROM THE FEDERALIST.
G
should be considered as a declaration of war. ?
We think the editor and Mr. Madison do not agree
on the right of interference. Neither do we think
this language conforms to the ideas thrown out by
Mr. Webster in his speech delivered in Richmond,
Virginia, Oct. 1840, in which he says, “I hold, by
the Constitution of the United States, that congress
is absolutely precluded from interfering in any
manner, directly or indirectly, with the institution
of slavery, or with any other State institution.”
Again he repeats, “There is no power, either in
congress or the general government, in the slightest
degree, to interfere with the institution of domestic
slavery !” Neither does it agree with the lan-
guage held by President Harrison, in his inaugural
address, on the subject of the members of one
State interfering with the internal policy of
another. For Mr. Madison continues :
“But a right implies a remedy ; and where else could
a remedy be deposited by the Constitution? Govern-
ments of dissimilar principles and forms have been found
less adapted to a federal coalition of any sort than those
of a kindred nature. As the Confederate Republic of
Germany,' says Montesquieu, consists of free cities and
petty states, subject to different princes, experience
shows us that is more perfect than that of Holland and
Switzerland. "Greece was undone,' he adds, as soon
as the king of Macedon obtained a seat in the amphic-
tions. In the latter case, no doubt, the disproportionate
force, as well as the monarchical form of the new Con-
federate, had its share of influence on the events.".
1 Boston Quarterly Review, vol. i. p. 489.
QUOTATIONS FROM THE FEDERALIST.
137
" It may possibly be asked what need there could be
of such a precaution, and whether it may not become a
pretext for alterations in the State governments, without
the concurrence of the States themselves. These ques-
tions admit of ready answers. If the interposition of the
general government shall not be needed, the provision
for such an event will be a harmless superfluity only in
the Constitution. But who can say what experiments
may be produced by the caprice of particular States, by
the ambition of enterprising leaders, or by the intrigues
and influence of foreign powers? To the second ques-
tion it may be answered, that, if the general government
should interpose in virtue of this constitutional authority,
it will be, of course, to pursue the authority.”.
Speaking of the rule adopted for the ratio of
representation and taxation, that they would both,
in view of congress, depend upon numbers, he
observes, —
“ All this is admitted, it will perhaps be said; but does
it follow, from the admission of numbers for the measure
of representation, or of slaves combined with free citizens
as a ratio of taxation, that slaves ought to be included in
the numerical rule of representation ? Slaves are con
sidered as property, not as persons. They ought, there..
fore, to be comprehended in estimation of taxation,
which are founded on property, and to be excluded from
representation, which is regulated by a census of persons.
This is the objection, as I understand it, stated in its full
force. I shall be equally as candid in stating the reason-
ing which may be offered on the opposite side.”
“We subscribe to the doctrine, might one of our
southern brethren observe, that representation relates
more immediately to persons, and taxation more imme.
diately to property; and we join in the application of this:
12*
138
QUOTATIONS FROM THE FEDERALIST.
distinction in the case of our slaves. But we must deny
the fact that slaves are merely considered as property,
and in no respects whatever as persons. The true state
of the case is, that they partake of both of these qualities;
they being considered by our laws in some respects as
persons, and in other respects as property. In being
compelled to labor, not for himself, but for a master ; in
being vendable by one master to another master; and
being subject, at all times, of being restrained in his liber-
tý, and chastised in his body, by the capricious will of
another, -- the slave may appear to be degraded from the
human rank, and classed with those irrational animals
which fall under the legal denomination of property. In
being protected, on the other hand, in his life and in his
limbs, against the violence of all others, even the master
of his labor and his liberty, and in being punishable him-
self for all violence committed against others, the slave
is no less, evidently regarded by the law as a member of
the society, not as a part of the irrational creation; as a
moral person, not as a mere article of property. The
federal Constitution, therefore, decides with great pro-
priety on the case of our slaves, when it views them in
the mixed character of persons and of property. This
is, in fact, their true character; it is the character be-
stowed on them by the laws under which they live, and
it will not be denied that these are the proper criterion,
because it is only under the pretext, that the laws have
transferred the negroes into subjects of property, that a
place is disputed them in the computation of numbers ;
and it is admitted, that, if the laws were to restore the
rights which have been taken away, the negroes could
no longer be refused an equal share of representation
... with the other inhabitants." .
* Federalist, p. 306. -
TOTATIONS FROM THE FEDERALIST,
In answer to an objection made, that, in the
exposition of the Constitution, the federal govern-
ment would follow the example of the States
which held slaves, where the slaves neither voted
nor increased the votes of their masters, which, if
done, all of the slaves would be represented, it
will be perceived he places it in the power of the
different States to arrange the right of suffrage as
they see fit; and, consequently, the moment the
slave is freed he may at once have a right to a full
representation, — an evidence it was expected such
would be the case ; for he says, –
“It is a fundamental principle of the proposed Consti-
tution, that, as the aggregate number of representatives
allotted to the several States is to be determined by a
federal rule, founded on the aggregate number of inhab-
itants, so the right of choosing this allotted number in
each State is to be exercised by such parts of the in-
habitants as the State itself may designate. The quali-
fications on which the right of suffrage depend are not,
perhaps, the same in any two States. In some of the
States the difference is very material. In every State a
certain proportion of the inhabitants are deprived of this
right by the Constitution of the State, who will be in-
cluded in the census by which the federal Constitution
apportions the representatives. In this point of view,
the Southern States might' retort the complaint, by in-
sisting that the principle laid down by the convention
required that no regard should be had to the policy of
particular States towards their own inhabitants, and,
consequently, the slaves, as inhabitants, should have
been admitted into the census according to their full
number, in like manner with other inhabitants, who, by
140
QUOTATIONS FROM THE FEDERALIST.
the policy of other States, are not admitted to all the
rights of citizens. A rigid adherence to this principle is
waived by those who would be gainers by it.
“All they ask is, an equal moderation be shown on
the other side. Let the case of the slave be considered,
as it is in truth, a peculiar one. Let the compromising
expedient of the Constitution be mutually adopted, which
regards them as inhabitants, but as debased by servitude
below the equal.level of free inhabitants,—which regards
the slave as the fifth of the man.” ?
He then goes on and takes another ground to
justify the convention. In the ratio of repre-
sentatives they considered that property should be
represented. "Government is instituted' no less
for the protection of property than of the persons
of individuals." The one as well as the other,
therefore, may be considered as represented by
those who have charge of the government; and,
consequently, he infers from this circumstance
that the southern person would conclude that the
property of the slaveholder should be represented
in the manner it was proposed, as he adds, -
"Such is the reasoning which an advocate for the
southern interest might employ on this subject;
and, although it may appear a little strained in
some points, yet, on the whole, I must confess it
fully reconciles me to the scale of representation
which the convention has established.”
Mark, in these expressions of Mr. Madison's, he
speaks of the southern man's arguments, not his
own; and that the whole of the arguments results
'Federalist,. p. 307..
QUOTATIONS FROM THE FEDERALIST.
141
in this, – that when the master wants to maltreat :
the slave, then he is property; but when the slave
maltreats his master, then he is a person; and
when taxation and representation are to be con-
sidered, he is neither one thing nor another, a sort
of hermaphrodite, — he is three fifths of a man.
Natural history gives no account of such an ani-
mal; he is a sort of being conjured up, just about
that time, in the brain of some wiseacres. If
there had been any record in history of any new
animal created' since the first formation of the
world, we might suppose the slave was a sort of
new creation, a being unique in his kind, — as a
south-western man would say, - a sort of half
horse, half alligator; though, perhaps, no touch of
the snapping turtle, or he might have been con-
sidered one of the descendants of the centaurs of
old, --half horse, half man, and, consequently, he
must be treated as such. We must, on the whole,
confess that, while Mr. Madison appears very in-
genious in this chapter, his reasoning is very weak.
Patrick Henry's analysis of the proposed Constitu-
tion might very well apply here. It would seem ·
Mr. Madison was very easily reconciled, provided
the Constitution should be established, though he
had observed there should be no contradictory
principles embodied in the instrument.
The amendments to the Constitution, however,
as it will be our object to prove, put at rest this
reasoning, and has, or should have, restored the
slave, ere this, to his rights. We think, on the
whole, Mr. Madison — not only here, but in other
142
QUOTATIONS FROM THE FEDERALIST.
places — tries to blind his own eyes and that of.
others to the real nature of the consequences
which would naturally result on the adoption of
the Constitution with regard to the slave. .
In speaking of the house of representatives, in
relation to the supposed tendency of the plan of
the convention to elevate the few above the many, .
he remarks,-.
5. If it be asked, what is to restrain the house of repre-
sentatives from making legal discriminations in favor of
themselves, and a particular class of society? I answer,
the genius, of the whole system, the nature of just and
constitutional laws, and, above all, the vigilant and
manly spirit which actuates the people of America, -a
spirit which nourishes freedom, and, in return, is nour-'
ished by it.
“If this spirit should ever be so debased as to tolerate
a law not obligatory on the legislature, as well as on the
people, the people will be prepared to tolerate any thing
but liberty."
We will ask here, if, in the new position which
the South has now taken on the subject of slavery,
it is a blessing, and not an evil; that it must
and should be sustained by laws, thereby consti-
tuting two distinct classes of society, one favored,
and the other treated with contumely ; is it not
just the state of society of which Mr. Madison
speaks ? and if the American people sanction it,
will they not tolerate any thing “but liberty ?"
and have we not already had a foretaste of what
may be expected, if slavery is much longer con-
tinued, in the lynchings and burnings, gaggings
CD
QUOTATIONS FROM THE FEDERALIST.
143
and rifling post-offices, refusing petitions by con-
gress, &c. &c. ? These things cast a shadow be-
fore not to be misunderstood, and we think this
view of the subject completely puts to rest the
ideas expressed in the previous quotation, and
shows what a baseless foundation Mr. Madison
had there to stand upon.
. Respecting the power of the Courts.
Mr. Hamilton, in speaking of the judicial depart-
ment, makes the following observations:
“Some perplexity respecting the rights of the courts to
pronounce legislative acts void, because contrary to the
Constitution, has arisen from the imagination that the
doctrine would imply a superiority of the judiciary to the
legislative power. It is urged, that the authority which
can declare the acts of another void must necessarily be
superior to the one whose acts may be declared void.
As this doctrine is of great importance in all of the
American constitutions, a brief discussion of the grounds
on which it rests may not be unexceptionable. .
6. There is no position which depends on clearer prin-
ciples than that every act of a delegated authority, con-
trary to the tenor under which it is exercised, is void.
No legislative act, therefore, contrary to the Constitution,
can be valid. To deny this would be to affirm that the
deputy is greater than his principal, that the servant is
above his master, that the representatives of the people
are superior to the people themselves, that mere actions,
by virtue of powers, may do not only what their powers
do not authorize, but what they forbid.
6 If it be said that the legislative body are the constitu-
tional judges of their own powers, and that the construc-
QUOTATIONS FROM THE FEDERALIST.
tion they put upon them is conclusive upon the other
departments, it may be answered, that this cannot be the
natural presumption, when it is not to be collected from
any particular provisions in the Constitution. It is not
otherwise to be supposed that the Constitution could
intend to enable the representatives of the people to sub-
stitute their will to that of their constituents. It is far
more rational to suppose that the courts were designed
to be an intermediate body between the people and the
legislature, in order, among other things, to keep the
latter within the limits assigned to their authority. The
interpretation of the laws is the proper and peculiar
province of the courts. A constitution is, in fact, and
must be regarded by the judges as, a fundamental law.
It must therefore belong to them to ascertain its meaning,
as well as the meaning of any particular act proceeding
from the legislative body. If there should happen to be
an irreconcilable variance between the two, that which
has the superior obligation and validity ought, of course,
to be preferred: in other words, the Constitution ought
to be preferred to the statute; the intention of the people
to the intention of their agents.
“Nor does the conclusion, by any means, suppose a
superiority of the judicial to the legislative power. It
only supposes the power of the people is superior to
both ; and that, when the will of the legislature, declared
in the statutes, stands in opposition to that of the people,
declared in the Constitution, the judges ought to be gov-
erned by the latter rather than the former. They ought
to regulate their decisions by the fundamental laws,
rather than by those that are not fundamental.” 1
“But, in regard to the interfering acts of a superior
and subordinate authority, of original derivating power,
Federalist, p. 434.
QUOTATIONS FROM THE FEDERALIST.
145 -
the nature and reason of the thing indicate the course of
that rule as proper to be followed. They teach us that
a prior act of a superior ought to be preferred to the
subsequent act of an inferior and subordinate authority ;
and that, accordingly, whenever a particular statute con-
travenes the Constitution, it will be the duty of the judicial
tribunals to adhere to the latter, and disregard the for-
mer."?
In answer to an objection made to the above
construction of the powers of the Supreme Court,
he adds, -
- In the first place, there is not a syllable in the plan
which direcily empowers the national courts to construe
the laws according to the spirit of the Constitution, or
which gives them greater latitude in this respect than
may be claimed by the courts of every State. I admity
however, the Constitution ought to be the standard of
construction for the laws; and, whenever there is an
evident opposition, the laws ought to give place to the
Constitution. But this doctrine is not deducible from any
circumstance peculiar to the plan of the convention, but
from the general theory of a limited constitution; and,
as far as it is true, is equally applicable to most, if not
all, of the State governments. There can be no objec-
tion, therefore, on this account, to the federal judicature,
which will not be against the local judicatures in general,
and which will not serve to condemn every constitution
that attempts to set bounds to legislative discretion.” 2
“ It may be esteemed the basis of the Union, that the
citizens of each State shall be entitled to all the privileges
and immunities of citizens of the several States.' And,
if it be a jusí principle, that every government ought to
-
Federalist, p. 436
2 Idem, p. 450.
13
146
QUOTATIONS FROM THE FEDERALIST.
possess the means of executing its own provisions by its
own authority, it will follow that, in order to the inviola-
ble maintenance of that equality of privileges and immu-
nities to which the citizens of the Union will be entitled,
the national judiciary ought to preside in all cases in
which one State or its citizens are opposed to another
State and its citizens.”!
“After having discussed and laid down the principles
which ought to regulate the Constitution of the federal
judiciary, we will proceed to test, by these principles,
the particulars of which, according to the plan of the
convention, it is to be composed:
"First, to * all cases in law and equity, arising under
the Constitution and the laws of the United States. It
has been asked, what is meant by 6 cases arising under
the Constitution,' in contradistinction to those arising
under the laws of the United States. The difference
has already been explained. All the restrictions upon
the authority of the State legislatures furnish examples.
They are not, for instance, to emit paper money; but
the interdiction results from the Constitution, and will
have no connection with any law of the United States.
Should paper money, notwithstanding, be emitted, the
controversies concerning it would be cases arising under
the Constitution, and not under the laws of the United
States, in the ordinary signification of those terms. This
may serve as a sample of the whole.
"It may also be asked, what need of the word “equi-
ty?! What equitable causes can grow out of the Con-
stitution and the laws of the United States ? There is
'Federalist, p. 415.
2 A question may here be asked: If the States may not issue
paper money under the Constitution, can they authorize an agent
to do it? in other words, can they grant a charter to a bank, agree-
ably to this provision of the Constitution ?
QUOTATIONS FROM THE FEDERALIST.
147
hardly a subject of litigation between individuals which
may not involve those ingredients of fraud, accident;
trust, or hardship, which would render the matter an
object of equitable rather than legal jurisdiction, as the
distinction is known and established in several of the
States. It is the peculiar province, for instance, of a
court of equity, to relieve against what may be called
hard bargains. There are contracts in which, though
there may have been no direct fráud or deceit, sufficient.
to invalidate them in a court of law, yet there may have
been some undue and unconscionable advantage taken of
the necessities or misfortune of one of the parties, which
a court of equity would not tolerate. In such cases,
when foreigners were concerned on either side, it would
be impossible for the federal judicatures to do justice
without an equitable as well as lėgal jurisdiction.*** .
In the foregoing quotations, we think it must
be apparent to every one, that, in Mr. Hamil-
ton's opinion, the court held the rights of every
individual in their keeping, and that, when ap-
pealed to, they would, in duty bound, be obliged
to see him protected against all claims or authority
over his inalienable rights, or even rights which
are not inalienable; and, if wronged or oppressed,
either by individuals or a State, the power of the
court was sufficiently great to overrule their acts,
and restore the man to his just rights. For, if
they have jurisdiction in case of hard bargains, we
would ask what harder bargain can there be, than.
that a man and all his posterity should be sold into
slavery, even if the man consented, under peculiar
Federalist, p. 447.
148
QUOTATIONS FROM THE FEDERALÍST.
1
difficulties, to his own sale, and afterwards repents?
would not the court have jurisdiction ? If Mr.
Hamilton is correct in the above observations, we
think they would. How much more, then, should
the court have jurisdiction, when the slave, in
opposition to all his entreaties, is sold, and in vari-
ous ways maltreated in the most shameful manner!
If the courts have jurisdiction in any case where
the individual rights are concerned, we know of
none which so loudly calls for their interference as
that of the slave; and we sincerely trust the slave
will call upon them for that interference."
On general subjects.
Mr. Hamilton, in answer to an objection that
the convention did not adopt a bill of rights, re-
marks,
6 There remains but one other view of this matter to
conclude the point. The truth is, after all the declama-
tion we have heard, the Constitution is itself, in every
rational sense, and to every useful purpose, a bill of
riglits. The several bills of rights in Great Britain form
its Constitution ; and, conversely; the Constitution of each
State is its bill of rights. In like manner, the proposed
Constitution, if adopted, will be the bill of rights for the
Union. Is it one object of a bill of rights to declare and
specify the political privileges of the citizen in the struc-
ture and administration of the government. This is
done in the most simple and precise manner in the plan
of the convention; comprehending various precautions
for the public security, which are not to be found in any
of the State Constitutions. Is another object of a bill of
rights to define certain immunities and modes of pro-
QUOTATIONS FROM THE FEDERALIST.
149
ceeding, which are relative to personal or private con-
cerns ? This we have seen has been attended to in a
variety of cases, in the same plan. Adverting, there-
fore, to the substantial meaning of a bill of rights, it is
absurd to allege that it is not found in the work of the
convention." ?
After answering the objection, that it does not
go far enough, he adds,-
“Whence it must be apparent that much of what has
been said on this subject rests merely on verbal and
nominal distinctions, entirely foreign to the substance of
the thing."
Among the final reasons för adopting the Con-
stitution, Mr. Hamilton adds, --.
6 The additional securities to republican govern-
ments, to liberty, and to property, to be derived from the
adoption of the plan, consists chiefly in the restraints
which the preservation of the Union will impose upon
local factions and insurrections, and upon that ambition
of powerful individuals: in single States, who might ac-
quire credit and influence enough, from leaders and
favorites, to become the despots of the people ; in the
diminution of the opportunities of foreign intrigue, which
the dissolution of the confederacy: would incite and facili-
tate ; in the prevention of extensive military establish-
ments, which could not fail to grow out of wars between
the States in a disunited situation; in an express guar-
anty of a republican form of government to each; in the
absolute and universal exclusion of titles of nobility":
and in the precaution against the repetition of those
practices, on the part of the State governments, which
? Federalist, p. 481.
13*
150
QUOTATIONS FROM THE FEDERALIST.
have undermined the foundation of property and credit,
have planted mutual distrust in the breast of all classes
of citizens, and have occasioned an almost universal
prostration of morals."
From this it appears the conclusive reasons for
adopting the Constitution, and the ones which
were to cap the climax, were, the States were in-
capable of defending the individual's rights, they
had not power to repel foreign invasions, or over-
come the influences which ambitious men might
obtain in a single State, or to check the outbreaks
of the populace, or to overcome the jealousies that
might arise between different States, and which
would have a tendency to increase the military,
and thereby endanger the good of society, its peace
and happiness.
CHAPTER VII.
EXTRACTS, ETC. FROM THE PROCEEDINGS IN THE
CONVENTION OF THE STATE OF MASSACHUSETTS.
. We will now enter upon the discussion had in
the several conventions of the States, which were
called to take into consideration the subject of
adopting the Constitution as promulgated by the
convention at Philadelphia, premising, however,
the Constitution as adopted was an entirely differ-
ent thing from what was anticipated by the gen-
erality of the people at large: they expected an
improvement of the Confederation, not a new sys-
tem of government, as the Constitution proposed.
In the debates on the Constitution in the con-
vention of Massachusetts, Mr. King said, in the
discussion of the third paragraph, 2d section,
article 1st, -- "three fifths of all other persons :"
“ These persons meant slaves. By this rule is repre-
sentation and taxation to be apportioned. And it was
adopted because it was the language of all America.
[That is, that representation and taxation should go to-
gether; the greater the representation, the greater the
taxation.] According to the Confederation, ratified in
1781, the sums for the general welfare and defence
should be apportioned according to the surveyed lands,
and improvements thereon in the several States. But
152
MASSACHUSETTS CONVENTION.
it had never been in the power of congress to follow.
that rule, the returns from the several States being so
very imperfect.”!
On a question being asked by Mr. Widgery," if
a boy of six years of age was to be considered a
freeman,” ? Mr. King answered, -
"All persons born free were to be considered free-
men; and, to make the idea of taxation by numbers more
intelligible, said five negro children of South Carolina
are to pay as much tax as the three governors of New
Hampshire, Massachusetts, and Connecticut.” 3
66 Judge Dana asked, Can that land flourish like this
which is cultivated by the hands of freemen? and are
not three of these independent freemen of more real ad-
vantage to the State than five of those poor slaves ? ? ? *
“Mr. Nason remarked, “Mr. King ought to have gone
further, and have said three of our children in the cradle.
are to be rated as high as five of the working negroes of
Virginia, and it will then appear that this State will pay
as great a tax for three children in the cradle as any of
the Southern States for five hearty, working negroes; and,
as it was hinted we had made a bad bargain before, we.
ought to make a better one now..?"6
“Mr. Dawes observed, the colored people of the South-
ern States must be considered as slaves or freemen; if
the former, and consequently as so much property, why
should it not be wholly represented ? but our own laws.
and Constitution consider, blacks as freemen, and so, also,
does our own natural justice. If; then, as freemen, they
ought to be wholly represented. In either view, he could
1 Elliot's Reports, vol. i. p. 56.
3 Idem, vol. i. p. 57.
5 Idem, vol. i. p. 58.
2 Idem, vol. i.p. 57.
4 Idem, vol. i., p. 58.
MASSACHUSETTS CONVENTION.
153
not see that northern men would suffer, but directly the
contrary. He thought, however, that the passage ought
to be considered in the convention with that other portion
of the Constitution, that prohibits the slave-trade in 1808,
and that it was left to the option of all the States to
totally prohibit the introduction of slaves into any of the
States; and he asked, what could the convention do more?
The members of the Southern States, like ourselves, had
their prejudices. It would not do to abolish slavery by
an act of congress in a moment, and so destroy what our
southern brethren considered as property. But we may
say, that although slavery is not smitten by an apoplexy,
yet it has received a mortal wound, and will die of con-
sumption.” 1
Messrs. King, Gore, and Parsons spoke of the
advantage to the Northern States the apportion-
ment of taxes gave them; as also the Hon.
Judge Dana, who, in concluding his remarks, ob-
served, "I would rather be annihilated than to
give my voice for, or sign my name to, a Constitu-
tion which, in the least, would betray the liberties
or interest of my country." 2
It may, perhaps, be well to remark here, though
we have before entered pretty largely on this
question, how completely the southern people have
thrown off the advantage which our northern
statesmen thought they had gained over the south
by this system of taxation. Finding, as undoubt-
edly they must have done, how onerous it would
be to pay 'a' direct tax on each of their slaves,
they immediately took advantage of the disposi-
Elliot's Reports, vol. i. p. 60.
2 Idem, vol. i. p. 63.
154
MASSACHUSETTS CONVENTION
tion manifested at the North to raise a revenue on
imports. The mechanics of the North wishing to
have their labor protected, and the South wishing
to get rid of this direct tax, both succeeded in
their wishes, and consequently a tariff on foreign
articles was adopted. By this step, though op-
posed by much of the intelligence of the North,
the South, in consequence of the small quantity of
foreign products used by her slaves, has thrown a
good portion of the expenses of the government
upon the non-slaveholding States. The grand bar-
gain made by our accomplished statesman has, in
the end, like all such bargains, turned out but a
sorry affair ; and we, their children, have not much
to boast of their acuteness in such matters, unless
we have the charity to suppose they intended it
should bear with such weight upon the holders of
slaves the masters would be glad to let them go;
and, if so, we have only to regret they were not
holden to their bargain. We would also have the
observations made by Mr. Dawes remembered,
particularly when he speaks of the power of con-
gress: “It would not do to abolish slavery by
an act of congress in a moment.”. But to return:
“Mr. Widgery insisted we had a right to be jealous
of our rulers, who ought never to have power they
could abuse ;"2 and in another place observed, “ He
hoped the gentleman would not think hard of it if we,
ignorant men, cannot see as clear as he does. The
? See proceedings of a meeting held in the Green Dragon, Bos-
ton, just before the sitting of the convention.
2 Elliol's Reports, vol. i. p. 49.
MASSACHUSETTS CONVENTION.
155
strong must bear the infirmities of the weak; and it
must be a weak mind indeed that could throw such illib-
eral reflections against gentlemen of education as the
honorable gentleman complains of. To return to the
paragraph : If congress," continued Mr. W. “have this
power of taxing directly, it will be in their power to
enact a poll tax. Can gentlemen tell why they will not
oppose it, and by this means make the poor pay as much
as the rich ?”?
.66 Mr. Fuller was at a loss to tell how taxation and
representation went hand in hand, when the requisition
made on Massachusetts was thirteen times as great as
that made on Georgia, when she sent eight representa-
tives, and Georgia but three, [the question was asked
Mr. Gerry.) Mr. Gerry answered, Georgia had in-
creased its numbers by immigration ; and if it had not
then, it soon would have, enough to entitle it to the por-
tion assigned her." 2
66 Mr. Varnum said the States of New Hampshire and
Massachusetts, for two or three years, had in the field
half of the continental army under Gen. Washington,
and he thought, therefore, congress should have the
power of laying taxes, in order to make the different
States pay their proportion." 3
“ Mr. Widgery was opposed to the Constitution : his
arguments were, - the Confederation was well enough,
and he was not afraid of foreign enemies."
56 Mr. Neal went over the ground of objections to this
section, on the idea the slave-trade was allowed to be
continued for twenty years. His profession, he said,
obliged him to bear witness against any thing that
should favor the making merchandise of the bodies of
1 Elliot's Reports, vol. i. p. 63.
3 Idem, vol. i. p. 92.
2 Idem, vol. i. p. 64.
156
MASSACHUSETTS CONVENTION.
men; and, unless his objection was removed, he could not
put his hand to the Constitution. Other gentlemen
said, in addition to this idea, that there was not even a
proposition that the colored man should ever be free,
and Gen. Thompson exclaimed, “Mr. President, shall it
be said, after we have established our own independence
and freedom, we make slaves of others ? O! Washing-
ton,' what a name he has had ! How he has immortal-
ized himself! but he holds those in slavery who have as
good a right to be free as he has; he is still for self, and,
in my opinion, his character has sunk fifty per cent." » 2
« On the other side, it was said that the step taken in
this article towards the abolition of slavery was one of
the beauties of the Constitution. They observed that, in
the Confederation, there was no provision whatever for
its being abolished; but this Constitution provides that
congress may, after twenty years, totally annihilate the
slave-trade, and that all the States except two had passed
laws to this effect. It might reasonably be expected it
would be done. In the interim all the States were at
liberty to prohibit it.”
66 The debate of this ninth section, as the reporter
observed, continued desultory, and consisted of similar
objections and answers thereto as had been before used.
BOTH SIDES deprecated the slave-trade in the most point-
ed terms. On one side it was pathetically lamented by
Mr. Nason, Major Lash, Mr. Neal, and others, that this
Constitution provided for the continuance of the slave-
trade for twenty years. On the other, the Hon. Judge
Dana, Mr. Adams, and others, rejoiced that a door was
now opened for the annihilation of this odious and ab-
horrent practice in a certain time.”
? It must be remembered Washington, at his death, gave free-
dom to his slaves.
2 Elliot's Reports, vol i. p. 117.
MASSACHUSETTS CONVENTION..
157
“Mr. Heath observed he had been absent, and had not
heard the remarks that had been made. But the para-
graph respecting the migration and importation of such
persons as any of the States now existing shall think
proper to admit, &c. is one of those considered during
my absence, and I have heard nothing on the subject,
save what has been mentioned this morning; but I think
the gentlemen who have spoken have carried the matter
rather too far on both sides. I apprehend it is not in
our power to do any thing for or against those who are
in slavery in the Southern States. No gentleman within
these walls detests every idea of slavery more than I do.
It is generally detested by the people of this Common-
wealth ; and I ardently hope the time will soon come
when our brethren of the Southern States will view it as
we do, and put a stop to it; but to this we have no right
to compel them. Two questions naturally arise, if we
ratify this Constitution : Shall we do any thing, by our
acts, to hold the blacks in slavery? or shall we become
partakers in other men's sins ? I think neither of them:
each State is sovereign and independent in a certain
degree, and they have a right and will regulate their
own internal affairs as to themselves appears proper;
and shall we refuse to eat or drink, or be united, with
those who do not think or act as we do? Surely not.
We are not, in this case, partakers of other men's sins;
for in nothing do we voluntarily encourage the slavery
of our fellow-men. A restriction is laid on the federal
government, which could not be avoided, and a union
take place. The federal convention went as far as they
could ; the migration and importation is confined to the
States now existing only. New States cannot claim it.
Congress, by their ordinance for creating new States,
some time since declared that the new States shall be
republican, and that there shall be no slavery in them.
14
158
MASSACHUSETTS CONVENTION.
But whether those in the Southern States will be emanci-
pated after the year. 1808 I do not pretend to determine;
I rather doubt it.”.!
Questions might here arise, -- whether, if slaves
could be held in the old States, under the
Constitution, with Mr. Heath's understanding of
the matter, they could be so held in the States
that have been admitted since the Union was
formed; whether it is in the power:of congress to
grant to these new States the liberty of receiving
slaves within their borders by immigration ; also,
whether the republican character that congress has
guaranteed to each State, to which Mr. Heath'
alludes, would not also forbid slaves from being
retained even in any State.
After the Constitution had been discussed by
paragraphs, and the whole brought up to be adopt-
ed, -
“Mr. Neal rose and said, that, as the Constitution at
large was now under consideration, he would just remark, ·
that the article which respected the Africans was the one
that laid on his mind; and, unless his objection to that
was removed, it must, however much he liked the other
parts of the Constitution, be a sufficient reason for him
to give his negative to it.” 2
“Mr. Heath remarked, we are soon to decide on a
system of government, digested, not for the people of the
Commonwealth of Massachusetts only, not for the present
people of the United States only, but, in addition to these,
all those States that may hereafter arise into existence
within the jurisdiction of the United States, and for mil-
Elliot's Reports, vol. i. p. 123.
? Iden, vol. i. p. 127.
MASSACHUSETTS CONVENTION.
159
lions yet unborn, - a system of government, not for a
nation of slaves, but for a people as free and as virtuous
as any on earth ; not for a conquered nation, subdued to
our will, but for a people who have fought, who have
bled, and who have conquered -- who, under the smilés
of Heaven, have, established their independence and
sovereignty, and have taken equal rank among the na:
tions of the earth.”? .
After other observations, he says, -
“But I have observed, from the first, that many gen-
tlemen are opposed to the system ; and this, I appre-
hend, arises from their objections to some particular
parts of it. Is there not a way their minds may be re-
lieved from embarrassment? I think there is; and I
think no exertion should be spared in endeavoring to do
it. He therefore recommended that the first representa-
tives to congress be requested to exert their endeavors to
have such checks and guards provided as appear to be
necessary in some of the paragraphs of the Constitution.
Communicate what we judge proper to our sister States,
and request their concurrence : is there not the highest
probability every thing we wish may be effectually se-
cured? He thought there was; and the gentlemen of
the convention would have their difficulties under which
they labored removed.”
Mr. Bowdoin, in the course of his observations,
remarked, -
“From hence it follows that all the governments of the
States ought to be of the same nature — of the republi-
can kind; and that the general government ought to be
an assemblage of the spirit and principles of them all.” 2
1 Elliot's Reports, vol. i. p. 128.
? Idem, vol. i. p. 133.
160
MASSACHUSETTS CONVENTION.
The following is an abstract of the' amendments
introduced by the president, Mr. Hancock, in order
to induce the different members of the convention
to give their sanction to the instrument:
1st. It is explicitly declared that all powers, not
expressly delegated to congress, are reserved to the
several States, to be by them exercised.
This was considered by Mr. Adams as a sum-
mary of a bill of rights.
The 3d amendment proposed was to quiet the
apprehension of those who thought congress held
too much power over elections.
4th. Congress cannot lay direct taxes, except
when the money arising from imposts and excises
shall be insufficient for the public exigencies, &c.
The 6th was to introduce the indictment by the
grand jury, before any person should be tried for
crime, before he should incur any infamous pun-
ishment, or loss of life.
The 8th recommends a trial by jury in civil
actions between citizens of different States.1
There were nine amendments finally adopted.
1 These amendments were in the hand-writing, as we have
understood by a gentleman' who attended all the sittings of that
convention, of Mr. James Sullivan. The same gentleman also
remarked that there was a great deal of exertion made to keep the
convention in ignorance of the real bearing that the Constitution,
as reported, might have on the system of slavery; and he remarked,
with emphasis, that, if that convention had had the least idea that
slavery would have been supported by it, the Constitution would
have been rejected in three days. This same gentleman, who had
taken a very active part in favor of the Constitution, observed that
it was generally supposed, by the principal men, that the South
would soon perceive that slavery was a dark spot on her escutcheon,
I Benjamin Russell, Esq.
MASSACHUSETTS CONVENTION.
161
.
“ These amendments met the concurrence of Mr.
Adams, and he thought they would be generally
and that they would, of their own accord, soon abolish it. He,
though not a member of the convention, thought a rejection would
be the case; and it required, as he said, a great deal of manage-
ment to bring about the consent of the delegates of ihe convention
to the Constitution. It had become well known, before the meeting
of the convention, that Mr. Hancock and Samuel Adams were
opposed to it. The merchants and those in favor of it in the city
of Boston, calculating upon the humanity of these gentlemen, and
that they might be operated upon by causes which would be likely
to influence them, got up a large meetiog of the mechanics of the
town, who lield their meeting at the tavern called the Green Drag-
on. The house was filled to overflowing; and the street, and all
the avenues about the house, were crowded with people. He, as'
secretary of the meeting, read a series of resolutions; that had been
prepared by Mr. Christopher Gore, amended, as he said, by the
committee who were appointed by the meeting to bring in resolu-
tions, in order to make them appear more mechanical; as they
were rather too refined, as they supposed, for such a meeting to
adopt. They were read to the meeting inside of the house, and
they adopted them by acclamation : they were then read to the
people outside, and they also received them with enthusiasm.
When Mr. Samuel Adams heard of the meeting the next day,
and what they had done, he was inuch surprised, and could hardly
believe there were many of the mechanics in attendance, until he
was assured of the fact by Mr. Revere, the chairman of the meet-
ing, who was a mechanic and a great friend of Mr. Adams. (Our
Boston folk have not yet forgotten how to carry a point, when
they have determined upon it!)
After it had been ascertained that there was a majority in the
convention who would vote in favor of the Constitution, the citizens
waited upon Mr. Hancock, who had been confined during the
sittings of the convention by sickness, look him in a carriage, and, .
as it was said, about five hundred persons drew him to the hall of
the convention; and he had the honor of coming forward as a
conciliator, and presenting to the meeting the amendments that
had been prepared. It will be perceived they were wrillen with a
great deal of care, but ostensibly, and as asserted in the convention,
to secure the rights and liberties of all. With, then, the counte-
nance of Mr. Hancock, and the assent of Mr. Adams, with the
14*
162
MASSACHUSETTS CONVENTION.
acceptable, and meet the objections that had been
made."?
“Mr. Strong thought the amendments proposed would
meet the several objections made.” 2
“Mr. Thompson observed, he could not say amen to.
the amendments; he thought they might be voted for by
some Indians." 3
“Mr. Widgery did not see the probability these
amendments would be made, if we had the authority
to propose them. “ He considered the convention did not
meet for the purpose of recommending amendments, but
to adopt or reject the Constitution. He concluded by
asking whether it was probable that those States that had
already adopted the Constitution would be likely to sub-
mit to amendments."
"Judge Dana advocated the amendments. He said
they were not of a local nature, but extended to every
part of the Union; and he thought two thirds of con-
gress, or two thirds of the conventions of the States,
would adopt them.” 5.
“Gen. Thompson said, we have no right to make
amendments ; it was not the business for which we were
sent. He was glad that gentlemen were convinced it
was not a perfect system, and that it wanted amend-
ments: this, he said, was different from the language
assurance that their delegates in congress should press these
amendments till they should become a part of the Constitution,
and in consequence of the State being then, as now, one of the most
influential in the Union, her suggestions would have their weight,
and would probably be adopted : with these assurances, the conven-
tion, as will be perceived, concluded to adopt the instrument; and
those who finally voted against it said they would cease their
opposition.
Elliot's Reports, vol. i. p. 131. * Idem, vol. i. p. 145.
? Iden, vol. i. p. 145.
* Idem, vol. i. p. 146.
Idem, vol. i. p. 143.
MASSACHUSETTS CONVENTION. ·
163
they had , formerly held. However, as to the amend-
ments, he could not say amen to them; but they may be
voted for by some men - he did not say Indians.”
“ Major Lash, turning from the amendments, entered
largely into the consideration of the 9th section, and,
in the most pathetic and feeling manner, described the
misery of the poor natives of Africa who are kidnapped
and sold for slaves. With the brightest colors he painted
their happiness and ease on their native shores, and
contrasted them with their wretched, miserable, and un-
happy condition in the state of slavery.”
“Rev. Mr. Backus spoke in favor of the Constitution,
. because he thought by its adoption it would be a means
of destroying slavery." 3
“Dr. Jarvis repels the charges that these amendments
, have been artfully introduced to lead to a decision that
would not otherwise be had. Without stopping to re- .
mark upon the total want of candor in which such an
idea has arisen, let us inquire whether there is even an
appearance of a reason to support this insinuation. The
propositions are annexed, it is true, to the ratification,
but the assent is complete and absolute without them. It
is not possible it can be otherwise understood by a single
member of this honorable body. Gentlemen, therefore,
when they make such an unfair observation, do no honor
to the sagacity of others. The propositions are general,
not local; they are not calculated for the peculiar in-
terest of this Slate, but, with indiscriminate justice,
comprehend the circumstances of the INDIVIDUAL on the
banks of the Savannah, as well as the hardy and indus-
trious husbandman on the margin of the Kennebec.
Why, then, they should not be adopted, I confess I can-
not conceive. He thought other States would adopt
· Elliot's Reports, vol. i. p. 152.
2 Idem, vol i. p. 152.
164
MASSACHUSETTS CONVENTION.
.
them; that Massachusetts had her influence; and, as
they did away many objections that had been made,
they would be annexed to the ratification; and, if they
would not be immediately adopted by the influence of..
her delegation, they might ultimately be.” 1
We will stop here to remark how pointed and
distinct is this language: that the amendments
proposed, that should have a bearing upon the con-
dition of the slave, were not done in a sly and
clandestine manner, as had been insinuated; that
they were not made for deception, or that it was
intended to blind the eyes of any; but they were
so plain all would understand them, and that they
meant them to apply to the slave in Georgia as
well as to the freeman in Maine ; and it must be
presumed the South so understood it. It could
not be supposed their intellectual vision would be
so abtuse as not to see their bearings; and, conse-
quently, if they should be adopted, the slave would
be secuire in his personal rights, and could not
be punished but after a conviction of a crime
by a jury, and then not to receive any “cruel or
unusual punishment ;” and, as the amendments
that were finally adopted by congress not only in-
cluded these, with few alterations, but others more
definite and distinct than the ones passed by this
convention, - such, for instance, in the latter
clauses of the 1st article of the amendments,
where the freedom of speech and of the press,"
and “the right of the people peaceably to assem-
ble, and to petition government for redress of
1 Elliot's Reports, vol. i. p. 156..
MASSACHUSETTS CONVENTION.
165
grievances ;” also the 4th article, where "the
right of the people to be secure,” &c. is asserted ;
also a portion of the 5th, 6th, and 7th articles,
where the rights of the people are guaranteed to
them, - the people of Massachusetts felt some-
what satisfied that justice would at length be done
to the negro, and that she ceased for a time press-
ing his claim. For we think it will be perceived
every slaveholder has, and does, inake himself
liable, under these amendments, to be prosecuted
before our courts of law every time he presumes to
whip or punish a slave without a “process of law,”.
stating wherein his fellow.man has injured him;
and then he should not take the law into his own
hands; 'for this, we think, was the intention and
meaning of the amendments passed by the con
vention of Massachusetts.
“Mr. Ames said the amendments appeared satisfacto-
ry, and he approved the Constitution with the amend-
ments. One gentleman, who was distinguished for his
zealous opposition, has declared he would uphold both
hands if they could be adopted.""
6 The only question which seems to labor, is this :
the amendments are not a part of the Constitution, and
there is nothing better than a probability they will be
adopted. The nature of the debate is totally shifted,
and the inquiry now is, not what the Constitution is, but
what degree of probability there is that the amendments
will be incorporated into it.”
He then went on to consider the objections that
had been made.
Mr. Burrill, of York, spoke in fåvor of the Consti-
Elliot's Reports, vol. i. p. 157.
166
MASSACHUSETTS CONVENTION.
tution only as the prospect was that the amendments,
from the representation of the delegates, would be
adopted; otherwise he had strong objections from
the fear of its destroying the liberties of the country.'
66 Mr. Parsons demonstrated the impossibility of form-
ing a bill of rights in a national constitution for securing
individual rights, and showed the inutility of the measure,
from the idea no power was given to congress to infringe
on any one of the natural rights of the people by this
Constitution; and, should they attempt it, without consti-
lutional authority, this act would be a nullily, and could
not be ENFORCED." 2
We will here ask if congress, that power which
was made the supreme, could not infringe upon
any of the natural rights of the people, and all
such acts, if attempted, would be at once a “nul-
States to do it? Can the States have a greater
control over the individual, the lesser power, than
congress, the greater? We must certainly an-
swer in the negative. The States cannot have a
greater control over the individual than congress;
perhaps, with certain modifications, they may ex-
the principles of the Constitution; and if congress
cannot interfere with the natural rights of the
individual, neither can the State, nor the indi-
vidual of a State. The individual has never given
these rights away, and, as the Declaration of Inde-
pendence says, never can; they are inalienable.
How can the individual but be secure under our
1 Elliot's Reports, vol. i. p. 161.
Idem, vol. i. p. 164.
MASSACHUSETTS CONVENTION.
167
Constitution if 'its provisions be properly carried
into, effect? As Judge Parsons may be consid-
ered good authority in this case, we must sup-
pose the individual, wherever situated, and of
whatever complexion, has these natural rights, of
which he cannot by any laws be deprived; and if
they are taken away it cannot be considered law-
ful; and, consequently, any claim over these rights
must be a "nullity," being in opposition to natural,
justice and our Constitution. .
"Mr. Stillman was in favor of the Constitution with-
out the amendments, only as he thought it sufficiently
guaranteed the liberties of the people.”
Hon. Mr. Turner made an excellent speech in
favor of the Constitution with the amendments.1
Mr. Symms, who had opposed the Constitution
as it was, but who was desirous one should be
adopted, observed, -
- When his excellency the president came forward, .
as became his high office, in the character of a mediator,
a ray of hope shot in upon the gloom that overspread his
heart-of hope that we should still be united in the grand
decision!. Speaking of the amendments, he said, - Our
committee, sir, are pretty well agreed as to the amend-
ments necessary to be made; and, in their report, it
appears that these amendments are equally beneficial to
ALL of the citizens of America. There is nothing local
in them. Shall we then totally reject the Constitution
because we are only morally certain they will be adopt-
ed ? Shall we choose certain misery in one way, when
we have the best human prospect of enjoying our most
sanguine wishes in another? God forbid ! "2.
Elliot's Repórts, vol. i. p. 171.
2 Idem, vol. i. p. 173.
168
MASSACHUSETTS CONVENTION.
He concluded his speech by saying, -
“ He withdrew his opposition from the consciousness
that the amendments would be adopted. That from the
known influence that Massachusetts held in the nation,
and that they would be the standing instructions of the
delegates in congress to urge their adoption, he con-
cluded there would be no doubt of their ultimate suc-
cess; and, consequently, by withdrawing his opposition,
and conceiving the utmost need there was for a consti-
tution for the country, he felt himself acquitted by his
own conscience; he hoped and trusted he should be by
his constituents, and [laying his hand on his breast] I
know I shall before God.”
The time having arrived for taking the question,
as to the adoption of the Constitution, the presi-
dent made a short address. Among other things,
he said, -
“I should consider it one of the most distressing mis-
fortunes of my life to be deprived of giving my aid and
support to a system which, if amended (and I feel as-
sured it will be) according to your proposals, cannot
fail to give the people of the United States a greater
degree of political freedom, and, eventually, as much
national dignity, as falls to the lot of any nation on
earth."
After the vote had been taken, 187 yeas, 168
nays, most of those gentlemen who had opposed
its adoption stated they should not continue their
opposition, but should, as they had been fairly
beaten, give in their adhesion, hoping it might
prove the blessing that its advocates thought it
would produce.
1
169
,
.
The convention closed its proceedings by say
ing, —
66 That, in acknowledging, with grateful hearts, the good-
ness of the Supreme Ruler of the universe, in affording
the people of the United States, in the course of his
providence, an opportunity deliberately and peaceably,
without fraud or surprise, of entering into an explicit
and solemn compact with each other, by assenting to
and ratifying a new Constitution, in order to form a
more perfect union, establish justice, insure domestic
tranquillity, provide for the common defence, promote the
general welfare, and secure the blessings of liberty to
themselves and their posterity, do, in the name, and in
behalf, of the people of the Commonwealth of Massachu-
setts, assent to and ratify the said Constitution for the
United States of America."
After so much had been said in the convention
of Massachusetts, it may be thought surprising the
amendments were not more pointed and distinct
on the subject of slavery; and, because they were
not, it must be presumed General Thompson ex-
pressed himself as indignantly as he did. Yet, if
the principles they embodied should be carried
1
would be--and as the amendments actually adopted
were more distinct, there can be no reason to sup-
pose but those amendments should be applied in
the broadest sense, and be considered as having, if
not exclusively, certainly a distinct reference to
the condition of the slave. In the great anxiety
to have a Constitution by a good portion of the
1 Elliot's Reports, vol. i. p. 176.
15
170
MASSACHUSETTS CONVENTION.
T
people of Massachusetts, and particularly among
the leading men of those times, and fearing the con-
sequences if they did not succeed, we may suppose
they might be as guarded as they dare be, lest they
might destroy a fabric which, as they all de-
clared, they meant should be a palladium for the
general liberties of the country.
Mr. Dawes was the only one, so far as is re-
ported, who made any allusion to the prejudice that
was then existing against the colored race: he
seems to acknowledge that the South, as well as
the North, possessed it; and that was the reason
why the three fifths representation was adopted.
All the others were either silent on the subject,
or else spoke in decided terms of the iniquity of
slavery, and the abhorrence with which they
viewed the whole subject. But they all seemed
to think that the stopping of the slave-trade
would consummate the overthrow of slavery; and
it was against that they mostly directed their re-
marks, thinking, if that traffic was made to cease,
slavery would cease with it.
In reviewing these interesting proceedings, we
cannot but remark the firmness and love of liberty
which, with perhaps few exceptions, displayed it-
self in all of the observations of the men com-
posing this convention, nor help remarking the
determined opposition, to the very last, made to
slavery and its continuance and the impossibility
of having a constitution adopted at all, without
the almost positive assurance that such provisions,
in the form of amendments, should be made as
MASSACHUSETTS CONVENTION.
171
would prevent the personal tyranny practised in a
State where slavery existed ; and although scarce
one in the whole convention, so far as the debates
are reported, but appeared anxious for a constitu-
tion, and that there should be one similar to the
one before them, yet we find, on account of the
obnoxious paragraphs, which might be construed
as having relation to the colored man, there was
but nineteen majority in its favor, and many of
these said they should vote in its favor simply
on the ground that the amendments which the
convention proposed would be adopted. And, as
we find, these, with others securing the rights of
the individual in a distinct manner, were adopted.
Where, we ask, is the vaunted declaration, that
the Constitution guarantees slavery? Where, even,
is the compact ? The facts are, though South
Carolina and Georgia, together with a few slave-
holders out of these States, and Virginia and
North Carolina, afterwards attempted, in their
several State conventions, to force the acknowl-
edgement of slavery on the Union, the other
States would not agree to it; but, on the contrary,
caused such amendments to be made as to give
equal rights to all, as one member of this conven-
tion said, to those on the banks of the Savan-
nah as well as to those on the margin of the
Kennebec; and now, whether Georgia or South
Carolina agreed to these amendments or not, so
long as they agreed two thirds of the States could
make amendments, and have remained in the Un-
ion after they were adopted, it cannot be otherwise
172
MASSACHUSETTS CONVENTION.
supposed than that they have placed themselves
under all the liabilities which that instrument,
with its amendments, impose. It cannot be
supposed these States were not aware of the
nature of these amendments, nor how far they
would extend. The debates of Massachusetts
were known to them; they knew the ground
she took, and we see no reason why they should
not abide the consequences, when we know these
consequences cannot but redound to the glory of
all concerned.
Massachusetts, at that day, as well as at the
present, was considered one of the first States of
the Union. She had, contributed more men and
money to carry on the war than any other State,
and, her people thought, and thought justly, that
her voice should be heard. Was it not so heard ?
and were not the principles of liberty more fully
incorporated into the Constitution through her in-
fluence, and that of some of the other States, if
possible, than was at first embodied in the instru-
ment itself? Although we are aware there has
been, and there probably was at the time, as
without doubt there are some at this very time,
who would be glad to take away the rights of any
body, provided they themselves could or can ride
manry and the great body of the people held, and
we trust do hold, a different language, and that
Hiberty and the right will yet be maintained, what-
ever may be the exertions to prevent them from
being upheld.
C'H'APTER VIII.
EXTRACTS FROM THE DEBATES IN THE CONVENTION
OF THE STATE OF NEW YORK.
The observations made by most of the members
of the convention, for adopting the Constitution,
held in the State of New York, were, for the rnost
part, directed to the subjects how best to secure
the liberties of the State, and individuals of the
State, without having any regard to the different
races in the country. The situation of the colored
man appeared to be, for the most part, passed over
in silence,, -- not because they had any desire to
sanction the proceedings of the national conven-
tion on the subject, but because it seemed to the
different members, who alluded to it at all, as out
of their power to remedy. Take, however, this
convention as a body, if we may judge by the
report given of their proceedings, and we think
they did not take a very extended view of the
principles erbodied in the instrument upon which
they were discussing.
Most of their time was taken up in détails, and
in determining whether the ratio of representation
was correct, and whether the liberty of the indi-
vidual in their own State would be properly
secured. But they left the colored man where
they found him; they left him, for the most part,
15*
174
NEW YORK CONVENTION.
to take care of himself, whilst they looked out for
themselves. We have, therefore, but little to say
of their proceedings.
The following is nearly all we could glean,
which was thought had reference to the subject
under consideration; but what little we have
collected, shows the negro was not forgotten; that
he had here the sympathy of some. -But, in
general, the convention seemed to think the abso-
lute, necessity of the case, if they wanted the
Union, required them to acquiesce in the proceed-
ings of the national convention ; but if they had
been differently eircumstanced, they would not
have given sanction to its proceedings with respect
to the slave. While Mr. Hamilton' took so decided
a stand in favor of what had been done, the others
gave way, without an attempt to remonstrate,
saving a Mr. Treadwell, who, being absent, sent a
communication on the subject, which was pub-
lished at the end of their discussions. We should,
however; judge there was not any very great talent
displayed in this convention. A Mr. Smith at-
tempted' to make some general-opposition ; but one
word from Mr. Hamilton silenced him, and he at
once surrendered at discretion. The consequence
was, all the cannon were spiked, and nothing but
small' arm were afterwards used; though these,
we must admit, if properly directed, and made
to bear on the right subject, may do as much exe-
cution as larger ones.
But, without further comment, we will intro-
duce Mr. Robert R: Livingston. In speaking of
NEW YORK CONVENTION.
175
the powers conferred on congress, in distinction
to those conferred on the Confederation, “He
showed, in a strong point of view, the danger of
applying these, and deduced from all his observa-
tions that the old Confederation was defective in
its principles, and impeachable in its execution, as
it operated upon States in their political capacity,
and not upon individuals; and that it carried with
it the seeds of domestic violence, and tended ulti-
mately to its own dissolution."
These observations, if true, should be particular-
ly marked. The Confederation had nothing to do
with the individual in the several States, while, by
the Constitution, the congress of the United States
has. For it will be perceived, if this is so, it is
bound to see that the individual, wherever situated,
whether upon the banks of the Savannah, or
upon the margin of the Kennebec, if he be un-
lawfully seized in his person or effects, or receives
any punishment without due process of law, should
be protected and preserved from such outrages.
"Mr. Smith objected to clause 3d, section 2d, article
1st. He could not see any rule by which slaves were to
be included in the ratio of representation. The principle
of a representation being that every free agent should be
concerned in governing himself, it was absurd to give
that power to a man who could not exercise it: slaves
have no will of their own: the very operation of it was
to give certain privileges to those people who were so
wicked as to keep slaves. He knew it would be admitted
that this rule was founded on unjust principles, but that it
* Elliot's Reports, vol. i. p. 193.
.
176
NEW YORK CONVENTION.
was the result of accommodation ; which he supposed we
should be under the necessity of admitting, if we meant
to be in union with the Southern States, though utterly
repugnant to his feelings.”I si ..
After speaking for some time on the subject of
representation, and the fear that the spirit of liber-
ty might become extinct that had carried them
through the war of independence, from the feeling
that had already manifested itself in the different
parts of the country, he concluded, by proposing a
résolution for the apportionment of the representa-
tives, of which the following is a part :
“ That there should be one representative for every
twenty thousand inhabitants, until they amount to three
hundred; after which they shall be apportioned among
the States in proportion to the number of the inhabitants
of the States respectively.”.
If this amendment had been adopted, it will be
perceived that in the apportionment for representa-
tives no regard would have been had. to paupers,
Indians, negroes, or slaves, but all would have
been counted.
Hon. Mr. Hamilton said, --.
« The first thing objected to is the clause that allows a.
representation for three fifths of the negroes. Much has
been said of the impropriety of representing men who
have no will of their own: whether this is reasoning, or
declamation, I will not presume to say. It is the unfor-
tunate situation of the Southern States to have a great
part of their population, as well as property, in blacks.
The regulation complained of was one result of the
* Elliot's Reports, vol. i. p. 204.
NEW YORK CONVENTION.
177
:
spirit of accommodation which governed the convention ; .
and without this indulgence no Union could have been
formed. But, sir, considering some of the peculiar
advantages which we derive from them, it is entirely just
they should be gratified. The Southern States possess
certain staples,- tobacco, rice, indigo, &c.---which must
be capital objects in treaties of commerce with foreign
nations; and the advantages which they necessarily
procure in these treaties will be felt throughout the
United States. But the justice of this plan will appear
in another view. The best writers on government have
held that representation should be comprehended of
persons and property. This rule has been adopted, as
far as it could be, in the Constitution of New York. It
will, however, be admitted that the slaves are not to be
considered altogether as property. They are men,
though degraded to the condition of slavery. They are.
persons known to the municipal laws of the States which
they inhabit, as well as the laws of nature. But
representation and taxation go together, and one uniform
law ought to apply to both.. Would it be just to compute
these men in the assessment of taxes, and discard them
from the estimate in the apportionment of representa-
tives? Would it be just to impose a singular burden,
without conferring some adequate advantage ?”
· Mr. Melancthon Smith observed; -
56 He did not mean to alter the clause in apportioning
the representatives as regards slaves. He thought they
would have to give that up." 2
* Mr. Harrison, speaking of the objection that
had been made to the apportionment of the repre-
sentatives, and the withdrawal of the objection by
1
1 Elliot's Reports, vol. i. p. 213.
2 Idem, vol. i. p. 218.
178
NEW YORK CONVENTION.
the person who made it, said, “I think the con-
cession does honor to the gentleman who had.
stated the objection. He has candidly acknowl-
edged that this apportionment was the result of
accommodation, without which no union could
have been formed;"1 and then went on, like the
other debaters, considering the number that should
be in the house of representatives that would be
most likely to secure the liberties of the people. .
Mr. Treadwell, a member of the convention,
whó was opposed to the adoption of the Constitu-
tion, on the ground it took away State rights, and,
as he said, would produce a consolidated govern-
ment, whereby the liberties of the people would
ultimately be destroyed, in a speech, published as
a supplement to the proceedings of the convention,
though not delivered, remarked, among other
strong objections, —
There is another clause in this Constitution, which,
though there is no prospect of getting it amended, I
think ought not to be passed over in silence, lest such a
silence should be construed into a tacit approbation of it..
I mean the clause which restricts the general govern-
ment from putting a stop, for a number of years, to a
commerce which is a stain to the commerce of any
civilized nation, and has already blackened half of the
plains of America with a race of wretches, made so by
our cruel policy and avarice, and which appears to me
to be repugnant to every principle of humanity, morality,
religion, and good policy.”
Further on he says, –
? Elliot's Reports, vol. i. p. 241.
.
NEW YORK CONVENTION.
179
If we act with coolness, firmness, and decision, on
this occasion, I have the fullest confidence that the God
who has so lately delivered us out of the paw of the lion
and of the bear, will also deliver us from this Goliath, this
uncircumcised Philistine. This government is founded
in sin, and reared up in iniquity ; the foundations are ·
laid in the most singular breach of public trust, and the
top stone is the most iniquitous breach of public faith ;
laid in the cared up in iniquitsernment is founded
punished by the total extinction of our civil liberties.
We are invited, in this instance, of becoming partakers in
other men's sins; if we do, we must likewise be content
to take our share in the punishment.”
On the whole, this letter, or speech, was one as
firm and as good as any that appears among the
whole that was made on the adoption of the Con-
stitution. It would appear he left the Convention,
as some, also, of the Massachusetts delegation did,
because they would not even have it supposed
they gave countenance for a moment to what they
thought would injure their own liberties or that
of the colored man's..
The Constitution was adopted with the full
confidence" that the amendments they had pro-
posed would be incorporated in the instrument,
these amendments being accompanied with a bill
of rights. These were thirty-three in number,
and had more or less reference to the liberty of
the individual.
The vote was, yea's 30, nays 27,-- a majority, it,
had voted, the Constitution would have been
accepted but by two votes. The guaranty that
180
NEW YORK CONVENTION :
.
{
New York gave was not very strong, at the best ;
and, if Mr. Hamilton's account of the matter is
correct, the “capital articles for making treaties —
tobacco, rice, indigo," &c. — (cotton, it appears,
was not then a staple) had the effect to stop all
tongues, and to make them acquiesce in a transac-
tion which, as was observed by Mr. Smith, it
would be admitted was founded on unjust princi-
ples; which very admission, if true, in itself would
cause the whole transaction to be a nullity. For
what business or right has any body of men to
assemble, and make rules for the government of
society, which they themselves acknowledge to be
unjust ? The counterfeiter, the pirate, the robber,
can do no more; and the slimsy excuses made
by Mr. Hamilton, to justify the transaction, do but
show he could not well justify the case. He says
New York, in her legislation, acknowledges that
property, as well as individuals, should be repre-
sented ; and, as negroes at the South were consid-
ered such, therefore they should be represented.
But he immediately says they were not wholly
considered as property, but as individuals : “they
were persons known to our municipal courts."
We will ask, if such was the case, are they not
responsible persons ? Can our courts of law take
cognizance of things, and bring things to trial ?
Mr. Hamilton could not but be aware of the false
position in which he was placed, and in which the
country was placed, in regard to this thing. But
the “capital” articles, and, as we may suppose,
the obstinate perseverance of the delegates from
NEW YORK CONVENTION.
181
7
)
.
11
Georgia and South Carolina, together with the
prejudices and the known degradation and igno-
rance of the colored man, and Mr. H.'s want of
sympathy with the lower classes of society, and
his want of faith that they could by any possibility
of circumstances take care of themselves, induced
hirn to act the part he did. A man, in other
respects so just, and whose character for honesty
and uprightness was so preëminent, makes himself
appear in a light not so enviable as could be
wished, when he takes a step so opposed to natu-'
ral justice. To make a man amenable to laws,
and yet not give him the power over himself to
enable him to obey, and even give another the
sole control of his person, while it might be con-
sidered by some good theology, could not, by men
of sound judgment, be considered good law. No!
the foundation of all law presupposes the ability to
obey, or otherwise it should be considered no law.
For why should a person attempt to do that which
it is well known cannot be done ? or, if unre-
strained, and the person was left free to act, it
could be done, yet, being restrained, and obliged
to act according to the will and command of an-
other, must not the responsibility of his acts rest on
that other ? But it may be said the slave is not
brought before our courts but for some heinous
crime, of which the master may know nothing, or
even it may be a crime against the master. But
this cannot be a valid objection, because, when a
man is placed at the sole will of another, and is
made a chattel personal, he at once takes the place
16
182
NEW YORK CONVENTION.
of the brute, and can be no otherwise amenable
the ox, but the master must assume the responsi-
bility of the trespass. And here let us remark, is
there not a fearful responsibility resting upon the
shoulders of those who claim the control of the
acts of slaves ?. and, when a man presumes to take
this control, does he not in effect say, let the pun-
ishment of his crimes rest on me and my children?
We think so. But, whatever may be thought on
this subject, we cannot but suppose the men of
that age perceived the inconsistency of thus blend-
the slender thread that held slavery together; and
that, if justice once prevailed in the courts, it
would bring an end to the whole system. We
shall shortly see that it was expected such might
take place; and strong objections were made to
the Constitution on this very ground, — that our
judiciary would be called on for a decision in the
case. As a number of years has passed away, we
hope the time is now fast approaching, when a
better understanding on this subject will be more
generally diffused, and a more correct idea of the
general principles and the purposes of and for
which this government was adopted instilled,
not only in the minds of our Northern people, but
in those of the South; or perhaps we should rather
say, when the mind of this people can be brought
back to contemplate and carry out the doctrines
on which the revolution of this country was
brought about, and for which, as the preamble of
NEW YORK CONVENTION.
ULU
TV
our Constitution expressly declares, that instrument
was given to the country to secure. We do trust
there will be a different action on this subject, and
our colored brother may take courage. Let him
remember no exception was made to him, - not a
word left on the records; but the doctrines of
those days applied to him equally with the white
man ; and, though he may have been looked upon
with feelings of disrespect, of cupidity, and of ava-
rice, and as a being over whom they could lord it
unrestrained, yet, in the main, a better feeling
bore sway: some felt, with deep commiseration,
his unfortunate lot, and exerted their utmost efforts
to produce a proper feeling as regarded his situa-
tion, and succeeded in establishing principles
which, we trust, will not only work out his sal-
vation from political and slavish bondage, but
every individual, of whatever color or complexion
he may be, who 'may happen to come within the
borders of the United States, or step a foot on the
shores of America. When it can be said of this -
land, as it is now said of Britain, -
"Slaves cannot breathe in England; if their lungs
Receive our air, that moment they are free: ·
They touch our country, and their shackles fall," .
· when such shall be the case, theri will the true
idea, which apparently actuated the men who
have spent their exertions in the cause of liberty
and of freedom, be established; then will that
glorious day be ushered in, which has been looked
forward to with such anxiety by those who have
the welfare of mankind at heart, and who have, in
T
184
NEW YORK CONVENTION.
all ages, distinguished themselves as the lovers of
their species. For, let us consider, if slavery
ly would soon be in all parts of the world. Let
but America use the same determination to put a
stop to slavery that England is now doing, and the
traffic in slaves and the using of slave labor would
soon cease in every land.
CHAPTER IX.
EXTRACTS FROM THE PROCEEDINGS IN THE CON-
VENTION OF THE STATE OF VIRGINIA, ON THE
ADOPTION OF THE FEDERAL CONSTITUTION.
THE proceedings in this State, as well as those
in Massachusetts, are highly interesting. The
members who composed these two conventions
were among the most distinguished men of the
land. It undoubtedly was through the influence
of these men that the Constitution was brought
forward, and finally adopted. They appear to
have taken extensive and enlarged views on the
science of government, and to have weighed, with
as much exactness as appeared in their power, the
various evils and advantages to be feared and to
be derived from the adoption of that instrument.
History was ransacked for examples and for simil-
itudes ; objections to former governments were
pointed out, and, if possible, were to be avoided.
The powers given to the present government were
scanned with eagle eyes; no point escaped their
observation. The bearing of its different provisions
was looked into, its implied powers were comment-
ed on with a great deal of ability, and no stone
appeared to be left unturned that seemed, in any
manner, to conceal a grant that would invest too.
16*
VIRGINIA CONVENTION.
much power in the hands of those who should be
called upon to govern. They seemed to be con-
scious they were legislating, not for themselves
alone, but for posterity, — for millions yet unborn.
In the convention of Virginia, the discussion ex-
tended over a wide field. Patrick Henry took a
part in opposition to the Constitution: he exerted
his utmost eloquence to prevent its adoption ; he
thought it was fraught with evil; he was fearful
it would result in a monarchy; he thought there
· was too much power given to the executive, the
legislature, and the courts; he thought the Con-
federation was good enough, that the States and
the country were getting along well enough,
though the Confederation needed some amend-
ments. He was zealous for state rights; he was
anxious they should not relinquish those rights to
a federal head; but they should depend on them-
selves, rather than on external powers for govern-
ment. In fact, he seemed to think all government
was a necessary evil; he therefore was jealous,
extremely so, of any authority, either expressed or
implied ; and he kept that convention in a contin-
ciples involved in the instrument proposed for their
adoption. Marshall, Madison, Randolph, Grayson,
Nicholason, Mason, and others, put forth their
utmost powers, either in support of, or in opposi-
tion to, the views entertained by Mr. Henry.
"Their discussions were consequently long and
arduous; they, however, were full of interest, as
they show very distinctly the character and feel-
VIRGINIA CONVENTION.
187
ings of the men of that age. In these we find
strength, firmness, uprightness, consistency, and
inconsistency; a desire to do right, and yet a fear-
ful want of faith to do it; a knowledge of their
position, and yet an incomprehensible indetermi-
nateness whether they should perform their duty
or not. Like Felix of old, they trembled; and yet
they wished to put off the day of repentance to a
more distant period. On the subject of slavery,
they seemed to be well aware of its 'utter incon-
sistency with their professions, and the laws they
would make; it was on this subject alone that the
sincerity of their acts can be called in question.
They thought themselves, or at least pretended
they were, placed between two fires, and that it
was dangerous to advance or retreat. The same
honest. or dishonest, real or pretended, fears that
exist at the present day were maniſested ; conse-
quently, many of the Southern as well as the
Northern delegates wished things to remain as
they were, and let time work out a cure. Buit',
ſearing the love of liberty was too strong, and that
there was a power in embryo, that, if this instru-
ment went into operation, would lay their fancied
possessions in the dust, all the delegated powers
were looked upon with jealousy.by those who did
not wish to have the relation of master and slave
destroyed. The powers of the courts were scanned
and commented on; and, from what we can gather,
the opposition made by Mr. Henry to this tribunal
was because, in part, he feared what might be its
decision, if the case of the slave was brought before
188
VIRGINIA CONVENTION.
it for adjudication. But, because a slave was taxed
but as three fifths of a man, one thought congress
viewed them as property, and not as persons, and
consequently they might escape. But, as the con-
vention would not allow the slave to be represent-
ed till his humanity was allowed, and as no legis-
lature can turn a man into a brute, or a brute into
a man, or can convert the soul of man into a chat-
tel personal, into a thing without life or ·motion,
so, whatever any body of men may say respecting
him, he yet remains the same; he is ruled by the
same spirit, is under the same laws to his God, and
is equally morally responsible to him for his con-
duct, and, as was remarked, equally so to human
tribunals; and, if he violated the laws of society
in any of its moral aspects, he was liable to be
brought before their courts for judgment. If this
is so, does not the consequence follow, that, to all
intents and purposes, he must be considered a man,
and, before human tribunals, must be considered
and treated as such ? No sophistry can blind the
eyes to this fact; and, if a man, he must be re-
garded as such both by our laws and our Constitu-
tion, possessing all the privileges man can possess,
where no distinction is pointed out, and where
none was meant to be pointed out.
In presenting the reader the following extracts,
we were in doubt whether it would not have been
better to classify them, putting each under separate
heads or chapters; but, on the whole, as there
were but four points to be determined - namely,
1st. Those which go to prove the power of the
VIRGINIA CONVENTION.
189
courts, -2d. Those which explain the general
powers of congress, — 3d. Those which imme-
diately speak of slavery, - 4th. Those that have
reference to the object for which the Constitution
was formed, in regard to the liberty of the indi-
vidual ; or rather the determination of the people
that no Constitution should be formed that put
the liberty of the individual in danger -- the in-
telligent reader might. perceive, at once, to which
subject the extract belonged, and could apply it
without being told; and it might be as well
to pursue the course adopted, of going through
with each convention in its order, and afterwards
draw up a summary of the whole, and lay it as.
distinctly before him as possible ; and then he
might be able to judge of the conclusion as if a.
different course was pursued.
We consider each and all of the above as
great questions, and of vital importance to the
community, and which should be decided. They
are questions that interest every person to know;
for, upon their decision his individual rights, under
the Constitution, may, or may not, be invaded. For
if the rights of one individual, no matter whether
he. be white or black, can be taken from him, and
that for no crime the man can be restrained as a
slave, then may the rights of all, on the same prin-
ciple, be taken away: no man is safe, no man can
be safe. So far as individuals are concerned, the
Constitution is a dead letter; its principles do not
apply to them ; they are to be recognized as in
communities, as States; and the States, and indi-
190
VIRGINIA CONVENTION.
viduals of the State, if the Constitutions of the
States say nothing to the contrary, may enslave
as few or many of their people as they may choose.
Is this so? We think not. These assertions
might have applied, in some measure, to the Con-
federation ; but they cannot be applied under the
present arrangement. The Constitution, if we
rightly interpret it, has to do with the individual ;
and, if the community, or the State, or individuals
of the State, invade his rights, the Constitution
steps in, or should step in, to restore them. What
say the arguments of the gentlemen in Virginia
who adopted it? We shall see.
In the convention of Virginia, Mr. Henry asked
what right the national convention had to use the
words “we the people.”1 Governor Randolph an-
swered him by saying, " It was for the people the
'government was formed ; " " in the Confederation
they had no voice.” 2
Mr. Pendleton, in answer to Mr. Henry, among
other observations, said, -
“What was it that brought us from a state of nature
to society but to secure happiness ? and can society be
formed without government? personify government,
apply to it as a friend to assist you, and it will grant
your request. This is the only government founded in
real compact. There is no quarrel between government
and liberty ; the former is the shield and protector of
the latter. The war is between government and licen-
tiousness, factions, turbulence, and other violations of
the rules of society, to preserve liberty. Where is
1 Elliot's Reports, vol. ii. p. 47.
2 Idem, vol. ii. p. 51.
VIRGINIA CONVENTION.
191
the cause of alarm ? .... In the same plan we point out
an easy and quiet method to amend what may be found
amiss.” 1
Further on he says, -
“But objection is made to the form ; the expression,
• We the people,' is thought improper. Permit me to ask
the gentleman who made this objection, who but the
people can delegate powers? Who but the people have.
a right to form government? The expression is a com-
mon one, and a favorite one with me; the representa-
· tives of the people, by their authority, is a mode wholly
inessential. If the objection be, that the union ought to
be not of the people, but of the State governments, then
I think the choice of the former very happy and proper.
What have the State governments to do with it? Were
they to determine, the people would not, in that case, be
judges upon what terms it was adopted.”
He then went on to show the imbecility of the
Confederation, and the superiority of the Constitu-
tion over that in its effective character in forming
peace, and in declaring war, and he concluded by
saying, "For his part he was well satisfied with
this part of the system,” including in his remarks
the representatives of the States, meaning the
senate.
Mr. Lee, of Westmoreland, spoke in favor of
using, the expression, “we the people," and he
thought the house of representatives would be
like the house of commons, in the year 1782, who
resisted the will of the crown, and be able to pro-
tect our liberties.?
· Elliot's Reports, vol. ii. p. 57.
2 Idem, vol. ii. p. 60.
192
VIRGINIA CONVENTION.
Mr. Henry made quite a speech in answer, por-
tions of which will be found among the extracts
taken from his life, so far as relates to this subject.
His whole speech turned on securing the indi-
vidual and State rights ; he was fearful of the
results of the Constitution, of its power of taxation,
of the powers of the president. But he wished
for the union. His first wish was for American
liberty, and his second, for American union;" and
he concluded his remarks by saying, “May you be
fully apprized of the dangers of the latter, not by
fatal experience, but by some abler advocate
than I.”
Gov. Randolph, in answer to Mr. Henry, who
thought the country was in peace, and there was
no reason to alter the government, said, -
“There is no peace in this land; can peace exist,
with injustice, licentiousness, insecurity, and oppression ?
These considerations, independent of many others which
I have not yet enumerated, would be a sufficient reason
for the adoption of this Constitution, because it secures
the liberty of the citizen, his person, and property, and
will invigorate and restore commerce and industry.” .
He went on in a long speéch, giving his reasons
why Virginia should adopt the Constitution, on
account of her exposed situation, both on her coasts,
by Indians, and the other States who had already
adopted the Constitution, and from the slaves,
which he said at that time “bore the immense
proportion of 236,000 slaves to 352,000 whites.”
He was very eloquent in urging his reasons for the
adoption of the Constitution. Mr. Randolph, un-
VIRGINIA IN
193
.
CONVENTION.
doubtedly, had some desire the Constitution should
be adopted because a greater power would be at
command to suppress an insurrection of slaves,
though we have no evidence, but that he might
have wished their individual freedom. ;
Mr. Madison, in answer to the objections made
by Mr. Henry, respecting the consolidation of the
government proposed to be adopted, said, -
“Give me leave to say something of the nature of the
government, and to show it is safe and just to vest it with
the power of taxation. There are a number of opinions,
but the principal question is, whether it be a federal or a
consolidated government. In order to judge properly of
the question before us we must consider it minutely in
its principal parts. I conceive, myself, it is of a mixed
nature; it is in a manner unprecedented; we cannot find
one express example in the history of the world; it
stands by itself. In some respects it is a government of
a federal nature ; in others, it is of a consolidated na-
ture. Even if we attend to the manner in which the
Constitution is investigated, ratified, and made the act of
the people of America, I can say, notwithstanding what
the honorable gentleman has alleged, that this govern-
ment is not completely consolidated, nor is it entirely
federal. Who are parties to it? The people ; but not
the people as composing one great body, but the people
as composing thirteen sovereignties. Were it, as the
gentleman asserts, a consolidated government, the assent
of the majority of the people would be sufficient for its
establishment; and, as a majority have adopted it al-
ready, the remaining States would be bound by the act of
the majority, even if they unanimously reprobated it.
Were it such a government as is suggested, it would be
now binding on the people of this State, without having
17
194
VIRGINIA CONVENTION.
the privilege of debating upon it; but, sir, no State is
bound by it, as it is, without its own consent. Should
all the States adopt it, it will then be a government es-
tablished by the thirteen States of America, not through
the intervention of the legislatures, but by the people at
large. In this particular respect the distinction between
the present and proposed government is very material.
The existing system has been derived from the depen-
dent derivative authority of the legislatures of the States ;
whereas this is derived from the superior power of the
people. If we look at the manner alterations are to be
made in it, the same idea is in some degree attended to.
By the new system, a majority of the States cannot in-
troduce amendments ; nor are all the States required for
that purpose ; three fourths of them must concur in
amendments: in this there is a departure from the
federal idea. The members of the national house are to
be chosen by the people at large, in proportion to the
numbers in the representative district. When we come
to the senate its members are elected by the States in
their equal and political capacity ; but had the govern-
ment been completely consolidated, the senate would
have been chosen by the people in their individual ca-
pacity, in the same manner as the members of the other
house. Thus it is of a complicated nature; and this
complication, I trust, will be found to exclude the evils of
absolute consolidation, as well as a mere confederacy.
If Virginia was separated from all the States, her author-
ity would extend to all cases : in like manner, were all
power vested in the general government, it would be a
consolidated government; but the powers of the general
government are enumerated; it can only operate in cer-
tain cases; it has legislative powers on defined and limit-
ed objects, beyond which it cannot extend its jurisdiction." /
* Elliot's Reports, vol. ii. p. 95.
VIRGINIA CONVENTION.
195
1
Mr. Corbin, in answer to Mr. Henry, and ap-
proving of the Constitution, and of its adoption of
the expression "we the people," and of its powers
of direct «taxation, and of its nature to secure the
liberties of the country and of the people, says, -
“What power is given that will endanger liberty ?
I consider all of the traits of this system as having
a tendency to the security of our liberty." 1 He
also spoke of the distracted state of the country,
particularly in other States, and the ease with
which Virginia herself might be convulsed.
On the request of Mr. Henry, Gov. Randolph
concluded his remarks on the divided state of the
country, and the necessity of adopting the Consti-
tution. “The debts of the country must be paid.
We were much in debt to Europe, and we were
unable to pay." Rhode Island, it appeared, had
resisted many of the laws of the Confederation,
and he thought the powers given were not too
great..
“Go through these powers, examine every one, and
· tell me if the most exalted genius can prove the liber-
ty of the press is in danger. The trial by jury is sup-
posed to be in danger also. It is secured in criminal
cases, but supposed to be taken away in civil cases. It
is not relinquished by the Constitution ; it is only not
provided for. Look at the interest of congress to sup-
press it. Can it be in any manner advantageous for
them to suppress it?. In equitable cases it ought not to
prevail, nor with respect to admirality causes, because
there will be an undue leaning against those characters of
'
' Elliot's Reports, vol. ii. p. 106.
.
196
VIRGINIA CONVENTION.
whose business courts of admirality will have cognizance.
I will rest myself secure under this reflection, that it is
impossible that the most suspicious or malignant mind to
show that it is the interest of congress to infringe on this
trial by jury."] ,
In continuing his remarks, in answer to Mr.
Henry's objections, which, by the way; he thought
very unreasonable, he said, -
“He would take notice of what the honorable gentle-
man had said with respect to the power to provide for
the general welfare. The meaning of this clause has
been perverted to alarm our apprehensions. The whole
clause has not been read together. It enables “congress
to lay and collect taxes, duties, imposts, and excises ; 10
pay the debts, and provide for the common defence and
general welfare of the United States ;, but all duties, im-
posts, and excises shall be uniform throughout the
United States.” The plain and obvious meaning of this
is, that no more duties, taxes, imposts, and excises shall
be laid than are sufficient to pay the debts and provide
for the common defence and general welfare of the
United States."
This same opinion we have seen advanced by
the Hon. John Q. Adams. Here is a metaphys-
ical distinction we have not yet been able to
perceive. Whatever is for the general welfare, it
would seem by the expression, it would be in the
power of congress to adopt ; but this is denied. It
is said, -- if we understand the expression of the
We have quoted these remarks, and others that will appear in
this work, respecting the trial by jury, partly because this subject
has been considerably agitated in this community, and to show how
jealous the men of that age were on this subject.
VIRGINIA CONVENTION.,
197
gentlemen, — that the powers of congress is in
laying the tax; and, after getting the money in its
possession, it must then be spent for the general
welfare, &c. Nothing is said about the purpose
for which the tax is: to be raised. This question
of raising a tax is the one we should suppose
would be the last to be answered. The first,
what is for the general welfare? This having
been determined on, then comes the power of
taxation to pay for it. Or shall it be said we must
first raise the money, and after getting it in our
possession, we may then look for objects for the
general welfare on which to expend it. True, a
great diversity of opinions might be entertained on
the subject of the general welfare : the bank, for
instance, was instituted for the general welfare;. it
was put down on the same principle, not because
it was unconstitutional, for the putting of it down
was called an "experiment ;” and we have been
inclined to think it was an experiment well worth
trying. Internal improvement is another instance,
and the Cumberland road has been laid out, and
yet neither of these powers are expressly granted,
though it has been said the establishing either of
them is unconstitutional. But they are objected
to rather on the ground that the general welfare
is better promoted by letting the currency be regu-
lated by individuals, and internal improvements
be carried forward by the same means, greater
economy, safety, &c. being secured; or it is said
the government, in carrying out the general wel-
fare of the community, requires these several
17*
198
VIRGINIA CONVENTION.
agents to perform with facility its operations; and
therefore these agents are introduced, not because
they are any benefit to individuals, having no
immediate connection with the government, but
because the government, in its own business, re-
quires, their introduction. This, perhaps, is what
is meant, and yet we see not how, in establishing
a navy, a post-office, in making a road; in granting
patents, &c. &c. the general welfare is not first
consulted, and the tax laid to pay the expense
incurred for carrying into operation these several
=
1
for the government, in the first place, to see what
is for the general welfare ; and, having decided
what may be for that welfare, then she has the
power of laying á tax to carry the object into ex-
ecution. The power of laying a tax was a second-
ary power, but a necessary one, to carry the
former power into execution : the former power
being of no avail without the latter, they certainly
were not granted the power of taxing the people
for no object; but, if they had an object, that ob-
ject must first be ascertained. It was, for in-
stance, asserted it would be for the general welfare
that a national government should be established ;
and, after that government was established, it had
the power of taxation to pay the officers who
should administer it. There could have been no
power to tax the people before the people had
established a government, unless it had been an
usurped power. The granting power to the
general government to consult for the general
1,
VIRGINIA CONVENTION.
199
.
welfare and the security of liberty, does not grant
them the power, as has been asserted, of doing any
thing and every thing they might wish, whether
their actions resulted in evil or not; but their
consultations should be confined to the general
welfare, and in protecting individual liberty. But,
in performing these acts, they should not interfere
with the liberty of speech and of the press, with
conscieřice in religious affairs, &c. &c.; and no
person should be seized in his person, papers, and
effects, &c. without due process of law. If we are
here correct, we cannot see how the general wel-
fare and taxation can well be separated, or the dis-
tinction that has at times been set up can be made ;
and Mr. Randolph, in his closing remarks, seems
to catch at this idea.
Mr. R. then went on and asked, - ,
“What would be the consequences, if the government
had not this power? Why, you would give it the power
with one hand, and take it away with the other; and,
had not this power have been given, his affection for it
would not have been so great. When it obliges us to
tread in the path of virtue, when it takes from the most
influential man the power of directing our passions for
his own emolument, and of trampling on justice, I hope
to be excused when I say that, were it more objectionable
than it is, I would vote for the Union.”
“Mr. Munroe said he could not help expressing the
anxiety which he felt on the occasion, not only from the
importance of the subject, but from the profound respect
he felt for this august and venerable assembly, (meaning
the Virginia convention ;] and, after a short peroration,
he went on to remark of the similarity of the proposed
200
VIRGINIA CONVENTION,
government to those republics that had gone before.
There were none, he thought, resembled this, but the
Achæan league ; and he read several passages from
Polybius, tending to elucidate and prove the excellences.
of the structure of that league, and that it was not de-
stroyed by any internal commotions, but by external
foes, and at last by being swallowed up by the Roman
empire. He did not think we at all resembled Holland,
the Swiss, or the confederacy of Athens, Thebes, and
Sparta; and, consequently, our policy must be different."}
He seemed to think, when the country became
settled to the Mississippi, it would be too great for
a republic. His expression was, “It is too exten-
sive to be governed but by a despotic monarchy."
His opinion must have been changed when he was
president, and realized he was presiding over this
country, and found it not only settled as far as the
Mississippi, but beyond it; and the change in his
ideas must have been much greater, had he have
come to the conclusion that there was no necessity
for any human government whatever, — that man-
kind were so far willing to subjeet themselves to
the laws of God, that they needed no human re-
straint. We could sincerely hope and pray that
such may be the case. But, after all, we cannot
perceive how society can get along without laws,
rules, or regulations, for its government; and, if it
has them, they must have sanctions. God has a
government and has sanctions: must man, or: must
he not, imitate him in this particular?.
But to return: Mr. M. thought we stood in no
Elliot's Reports, vol. i. p. 171.
VIRGINIA CONVENTION.
201
1
danger of external foes: he thought they were too
far distant, separated as we are from them by the
Atlantic: and already different nations of Europe
manifested a desire for peace, and were ready to
make treaties with us; and that they would not
unreasonably call for their claims they had on us
for money. He therefore concluded we might,
without danger, calmly adopt such a system of
government as would be best adapted for the
country. He then proceeded to take a compara-
tive view of the Confederacy and of the Constitu-
tion, and divided his subject into two heads, --1st,
the form, 2d, the powers, of the government. He
considered the present system - the Confederacy
- defective in both these respects. He asked,
" Is the Confederacy a bond of union sufficiently
strong to bring the Státes together? Is it pos-
sessed of sufficient power to enable it to manage
the affairs of the Union ? Is it well organized,
safe, and proper? I confess that in all these in-
stances I consider it as defective; I consider it
void of energy, and badly organized.” He then
asked, “What are the powers which the federal
government ought to have ? and said, to the for-
mer he would give control over the national affairs,
and to the latter he would leave the care of local
interests. Neither the Confederation nor this Con-
stitution answer this discrimination." He would
give the federal government one great power, —
absolute control over commerce, - and take away.
from it the power of direct taxation. He thought
on this latter subject the general government
202
.
VIRGINIA CONVENTION. .
would interfere with the States, and that revenue
enough could be raised from lands and imposts, or
loans, for all the purposes of government. He
thought "congress could not discriminate over so
great a territory as to lay direct taxes, that would
be satisfactory to the people.” He was also in
favor of a bill of rights, —"the polar star and great
support of American liberty.” He thought that,
by giving congress all powers to make laws to
carry into operation the powers granted, they
might take away the trial by jury: “there were
no limits pointed out.”
“They are not restrained or controlled from making
any law, however oppressive in its operation, which they
may think necessary to carry their laws into effect. By
this general, unqualified power they may infringe, not
only the trial by jury, and every right that is not express-
ly secured, or excepted from the general power. I
conceive that such general powers are very dangerous.
Our great, inalienable rights ought to be secured from
being destroyed by such unlimited powers, either by a
bill of rights, or by express provisions in the Constitution.
It is immaterial in which of these two modes rights are
secured.”
He alluded to the divisions of power in the
Roman republic and in Great Britain ; but he
could see no real check in this Constitution. He
thought the power of the president too great, and
that he could secure his constant reëlection; and
that the senate, combined with the president,
would destroy the legislative influence of the
States; and concluded, under his present impres-
VIRGINIA CONVENTION.
203
.
sions, he thought it a dangerous government, and
calculated neither to secure the interests nor the
rights of our countrymen. And under such a
government he should be adverse to embark the
best hopes and prospects of a free people. We
have struggled long to bring about this revolution,
by which we enjoy our present security. Why,
then, this haste, this wild precipitancy?
Mr. Madison, in answer, spoke of the “ineffi-
ciency, of the federal government,"of its “inabili-
ty to pay the debts” of the country, and " to fulfil
its treaties," and "of the contempt with which
foreign nations were treating us;” of the “re-
fractory conduct of some of the States;” of their
not “paying" the quota of money which they
ought; and of the manner in which the country
were borrowing money to pay even the interest of
what she owed; of the ruinous manner of conduct-
'ing so; of the necessity of their altering their form
of government, and that Washington had acknowl-
edged there was a necessity for so doing, and that
the Confederacy had, from the first, proved de-
fective.
Mr. Henry, in reply to Mr. Madison, went on at
great length, and said, -
." He saw not the evils that had been stated. He did
not know but the country was as well governed as any
other; he referred to the Swiss Cantons, to the United
Netherlands, the height of power and riches to which
these had attained. He explained, as a reason why we
.
Elliot's Reports, vol. ii. p. 215.
204
VIRGINIA CONVENTION.
had not paid our debts, was because we had been too
extravagant, [what would he have thought if he had
lived in these days ! ] and that by industry and economy
these debts could be paid ; he saw no danger of the
States remaining out of the Union till amendments could
be adopted; he thought that Massachusetts, by adopting
the Constitution, and then recommending amendments,
had put the cart before the horse. He alluded to the obser-
vation that the civil power was defective ; he knew not
that it was so; that there were instances where men had
been guilty of very great crimes, and, in consequence,
put themselves out of the pale of civilized treatment, and
referred to a person who had been punished by an
expost facio law. He spoke of the Constitution as endan-
gering the liberties of the people, in its taxing power,
the power it possessed over the militia and the army, its
several arsenals, of its uniting the sword and the purse,
of the corruption that might take place among the
representatives and senators, and the federal court, par-
ticularly when the freedom of the CITIZEN should come
in opposition to the laws of congress. He treated the
explanation given by Mr. Madison of the mixed nature of
the government (as we shall give in another place) with
ridicule, and concluded by saying he should not give
his sanction to that instrument; he, however, desired a
union of the States, but not of the kind proposed. It
was not the kind of government for which the American
people had effected a revolution ; it was not for making
a great government, but for individual freedom they had
contended. He said gentlemen may retain their opin-
ions, but I shall look on that paper (meaning the Con-
stitution) as the most fatal plan that could possibly be
Josiah Phillips was the man alluded to. He was attainted by a
bill passed by the legislature of Virginia in a very short time after
he committed the act for which he was attainted.
VIRGINIA CONVENTION.
205
conceived to enslave a free people! If such be your
rage for novelty, take it and welcome ; but you shall not
have my consent.”
Mr. Henry, in his opening remarks, observed,
all governments were a necessary evil, and he
alluded to the ten miles square as being an attract-
ive object to some minds; as if he thought that
there were some in the country who were anxious
to secure to themselves some high station in the
government, and, for that reason, were anxious to
change the form of government from a confederacy
to such a government as was proposed, because it
would open the door for a greater number of offices.
[Whether such ideas entered into the minds of
those who formed the Constitution we cannot
say; but offices in these days appear to be very
attractive.] In the increase of our army, and the
alarming proposition to have the militia of the
States under the control of the president; in the
desire to spread slavery, and in the assertion that
the Constitution guarantees slavery, or, which in
effect is the same thing, that we have prevented
the government from abolishing it, or provided no
way by which it could be abolished, and at the
same time have agreed to suppress insurrections, –
should we not take alarm, and see that the liber-
ties of this country are not lost; and may we not
see, in the servility with which many members of
congress bow to the influence of slavery, cause to
take warning? We think we should, and should
bear in mind those observations made by Mr.
Henry.
18
206
VIRGINIA CONVENTION.
What could induce northern members of con-
gress to gag the mouths of their own constituents
but this desire for office, and this unholy influence,
that slavery, the withholding the individual free-
dom of so large a portion of the inhabitants of our
country, has so blinded the eyes of those that re-
main free they are beginning to lose sight of
those principles on which true liberty is founded ?
and is it not wonderful a man could speak as
Mr. Henry here does of individual rights, — that
the object of the revolution was not for making
a "great government,” but to secure "individual
freedom,” when he himself was a slaveholder, and
opposed the Constitution in some of its parts, be-
cause in its effect it might destroy the power of the
master, and which he feared would take away his
supremacy? It seems impossible to explain such a
course of proceeding; and it cannot be explained,
unless you adınit the colored people, in his eyes,
were no people; and yet he did not think so. No!
it must be put down to man's inconsistency, or, as
he himself said, because he really feared true
liberty would be endangered by letting the colored
man enjoy the same advantages the white man
did; he thought they would take advantage of
their liberty and become licentious.
Mr. Lee, of Westmoreland, answered Mr. Hen-
ry: he defended the Constitution; he referred to
Shays's rebellion in Massachusetts, to the tender
laws, and a variety of other circumstances, to
show there ought to be a change in the govern-
ment, and that those who desired it were as anxious
VIRGINIA CONVENTION.
: 207
for liberty as those who opposed its adoption. He
thought the idea of corruption in congress, and in
the courts, imaginary ; that the people had reserved
to themselves all their important rights; that the
Constitution was so constructed that "the rulers
of the people were . vested with certain defined
powers, and that what was not delegated to those
rulers was retained by the people; that the con-
sequence of this was, that the limited powers were
only an exception to those that were vested in the
people; that they knew what they had given up,
and could be in no danger.?? 1
What are these rights, of which Mr. Lee speaks,
that are retained by the people ? certainly not the
rights of the States, for he speaks of the rights of
the people. We can form no idea of any other
rights than those of which Mr. Jefferson spoke
in the Declaration of Independence; the inaliena-
ble rights of which every man is possessed, and
which the people, in forming their government,
retained : it was not the liberty of the States of
which he spoke.
Gov. Randolph also spoke in answer to Mr.
Henry in defence of the Constitution. He alluded
to what Mr. Henry had said in regard to Holland
and Switzerland ; he thought his objections and
comparisons were not correct; and, though he had
objections which he had given in a public letter,
and which we have, in part, quoted in another
place, yet he was anxious to have the Constitution
Elliot's Reports, vol. ii. p. 156.
208
VIRGINIA CONVENTION.
adopted, because it would secure the liberties of
the people. He said the coercive power of the
Confederation was totally void, and that the peo-
ple had long been convinced of it, and that this
conviction was manifest to the world ; that the
general government ought to be vested with
powers competent to our safety, or else the neces-
sary consequence must be that we shall be de-
fenceless.
“We are told, in strong language, of dangers to which
we shall be exposed unless we adopt this Constitution.
Among the rest, domestic safety is said to be in danger.
This government does not attend to our domestic safety.
It authorizes the importation of slaves for twenty-one
years, and thus continues upon us that nefarious trade.
Instead of securing and protecting us, the continuance of
this detestable trade adds daily to our weakness. Though
this evil is increasing, there is no clause in the Constitution
that will prevent the Northern and Eastern States from
meddling with our whole property of that kind. There is
a clause to prohibit the importation of slaves after twenty
years, but there is no provision made for securing to the
Southern States those they now possess. It is far from be-
ing a desirable property, but it will involve us in great diffi-
culty and infelicity to be now deprived of them. There
ought to be a clause in the Constitution to secure us that
property which we have acquired under former laws, and
the loss of which would bring ruin on a great many people.”1
He concluded by saying he wished for amend-
ments.
Mr. Randolph here says expressly there is
"no clause in the Constitution" to prevent the
1 Elliot's Reports, vol. ii. p. 212.
VIRGINIA CONVENTION,
209
Northern and Eastern States from meddling with
“their whole property,” and “that there was no
provision made for securing to the Southern States
those they " then “possessed." The subject was
left open, and, no doubt, intentionally so by many.
Mr. Lee even finds fault with Mr. Randolph for
making these objections, and points out to him his
inconsistency: he seemed to think it right and
proper that this property should be interfered with.
We hope and trust there are a good many Virgin-
ians who yet think the North has a right to meddle
with slavery, and that they will not think it neces-
sary much longer to hold their peace, but will
join the North in their endeavors to scout - the
abomination from their State, and redeem it from
the foul disgrace which the practices of the slave-
holder and the slavebreeder are bringing upon it..
It will be perceived the inconsistency of Mr.
Randolph is similar to that of Mr. Henry's, and is
equally beyond our power to explain; unless it
may be ascribed to what he calls the “infelicity" :
of doing without their slaves; in other words,
though they liked liberty themselves, they were
too great lovers of their own ease to labor:
Mr. Lee, of Westmoreland, speaking of Mr.
Randolph's speech, says, –
“ The honorable gentleman abominates it, [the Con-
stitution,] because it does not prohibit the importation of
slaves, and because it does not secure the continuance
of the existing slavery! Is it not obviously inconsistent *
to criminate it for two contradictory reasons ? I submit
i.t to the consideration of the gentleman whether, if it be:
18*
210
VIRGINIA CONVENTION.
reprehensible in the one case, it can be censurable in..
the other ?”
Mr. Grayson observed, -
“ They have the candor to acknowledge that taxes
on slaves would not affect the Eastern States, and that
taxes on fish and potash would not affect the Southern
States. They are then reduced to this dilemma. In
order to support this part of the system they are obliged
to counteract the first maxim of representation. The
best writers on this subject lay it down as a fundamental
principle, that he who lays a tax shall bear his propor-
tion of paying it.” 2.
Will not the logic here hold good, that he who
makes a law shall help bear its burden; and, con-
sequently, any laws in which the slaves have no
voice cannot be binding on the slave; and, as a
further consequence, that all such laws must be a .
nullity, void from the moment (if it will not be
considered an Irishism) of their enactment, and of
no rightful force, no one who was not permitted
to have a voice, either pro or con in their pro-
mulgation, being at all bound by them? We take
it so; and consequently these writers, on whom
Mr. Grayson relies for authority, would consider
American slavery to be upheld alone by the right
of the strongest, and not by any equitable laws;
and no laws are binding on a person situated as the
slave is, unless they relate to morals, and then not
because they are the laws of man, but of God.
Mr. Pendleton, in answer to some of Mr. Hen-
ry's, remarks, observed, —
Elliot's Reports, vol. ii. p. 214.
. ? Idem, vol. ii. p. 222.
VIRGINIA CONVENTION.
211
.“ On the subject of government, the worthy member
and I differ at the threshold. I think government neces-
sary to protect liberty; he supposes the American spirit
all-sufficient for the purpose. What say the most re-
spectable writers, — Montesquieu, Locke, Sidney, Har-
rington, &c. ? They have presented us with no such
idea. They properly discard from their system all the
severity of cruel punishments, such as tortures, inquisi- .
tions, and the like, - shocking to human nature, and
only• calculated to coerce the dominion of tyrants over
slaves. But they recommend making the ligaments of
government firm, and a rigid execution of the laws as
more necessary than in monarchy, to preserve that vir-
tue which they all declare to be the pillar on which the
government and liberty, its object, must stand. They
are not so visionary as to suppose there ever did, or ever
will, exist a society, however large their aggregate fund
of virtue may be, but hath among them persons of a .
turbulent nature, restless in themselves, and disturbing
the peace of others, —- sons of rapine and violence, who,
unwilling to labor themselves, are watching every oppor-
lunity to snatch from the industrious peasant the fruits
of his honest labor. Was I not then correct in my in-
ference that such a government and liberty were friends
and allies, and that their common enemy was turbulence,
faction, and violence? They are those, therefore, who
will be affected by good government; and for those, I
suppose, no gentleman will profess himself an advocate.
The writers just mentioned point out licentiousness as
the natural offspring of liberty, and that, therefore, all
free governments should endeavor to suppress it, or else
it will overthrow that liberty of which it is the result.
Is this speculation only?. Alas, reason and experience
too fatally prove its truth in all instances !: A republican
government is the nursery of science. It turns the bent
212
VIRGINIA CONVENTION.
STT
of it to eloquence, as a qualification for the representa-
tive character, which is, as it ought to be, the road to our
public offices. I have already the pleasure of beholding
these characters already produced in our councils, and a
rising fund equal to a constant demand. May Heaven
prosper their endeavors, and direct their eloquence to the
real good of their country! I am unfortunate enough to
differ (rather say fortunate] from the worthy member
in another circumstance. He professes himself an ad-
vocate for the middling and lower classes of men. I
profess to be a friend to the equal liberty of all men, from
the palace to the cottage, without any other distinction
than between good and bad men.”
After speaking much in favor of the Constitu-
tion, though he did not think it perfect, and was
glad that amendments had been proposed, he ob-
served, as it had been proposed to make these the
sine qua non of the acceptance of the Constitution,
and the manner the other States had accepted the
Constitution, --- those States would say, -
“No, gentlemen, we cannot accept your conditions.
You put yourself on the ground of opposition. Your
amendments are dictated by local considerations. We,
in our acceptance, have been influenced by general
utility to the Union. We cannot abandon principles like
these to gratify you. Thus, sir, by previous amend-
ments, we present a hostile countenance. If, on the
contrary, we imitate the conduct of those States, our
language will be conciliatory and friendly. Gentlemen,
we put ourselves on the same ground you are on. We
are not actuated by local considerations, but by such
· Elliot's Reports, vol. ii., p. 228..
VIRGINIA CONVENTION.
213
as affect the people of America in general. This con-
duct will give our amendments full weight.”?
: He then alluded. to a letter written by Mr. Jef-
ferson to one of the delegates, in which he ex-
pressed a wish that nine of the States would accept,
of the Constitution, that the good that might be
derived from it might be .secured, and that the
other four might not agree to it "until" "amend-
ments" should be secured. But, by having this
division, he hoped there would be no "schism” in
the Union; and then concluded by saying, -
“ The Constitution points out a plain and obvious
method of reform, without any disturbance or convul-
sions whatever. I therefore think we ought to ratify it,
in order to secure the union, and trust to this method for
removing those inconsistencies which experience shall
• point out."
These observations of Mr. Pendleton's before a
body of slaveholders, before men whose whole
course of action was one of systematic “snatching
from the industrious peasant the fruit of his hon-
est labor," must have been severe. If we can
judge what would be the consequence if such ob-
servations were now made before a body of slave-
holders, from the manner they have of late exhib-
ited their character, any thing but pleasant results
would follow. Plainness of speech in those days
was not considered as unbecoming men in good.
society; it was not then considered the evidence
of fanaticism, whatever may have been their other
faults ; and we think Mr. Henry and Mr. Randolph
must have felt the rebuke here given. It appears,
1 Elliot's Reports, vol. ii. p. 294.
214
VIRGINIA CONVENTION.
also, he was glad amendments had been proposed ;
but he thought Virginia should do as Massachu-
setts and the other States had done, - adopt the
Constitution as it was, and then prepare their
amendments. He thought by telling the other
States that, unless they adopted their amend-
ments, they would not give their sanction to the
Constitution, it would appear — as undoubtedly it
would have done -- "like dictation ;” and perhaps
also he did not altogether like the amendments
which the convention proposed, being, as he said,
"a friend to the liberty of all men," " without
any other distinction than between good and bad
men ;” and the amendments prepared by the con-
vention had inserted the word " freemen," in
speaking of rights to be enjoyed under the Consti-
tution, by which a distinction would have been
made between a slave and a person who was not.
He may have been desirous that distinction should
not be made in the Constitution; and we shall
find it was not.
Mr. Henry, speaking of the requisition to be
made for troops by the United States, and that
they would be apportioned according to the num-
ber of "blacks” as well as “whites," asked, “how
oppressive and dangerous must this be to the
South, who alone have slaves ? This will render
their proportion infinitely greater than that of the
Northern States. It has been openly avowed this
shall be the rule. I will appeal to the judgment
of the committee, whether there be danger.» 1.
· Elliot's Reports, vol. ii. p., 241.
VIRGINIA CONVENTION.
215
It is mortifying to see and know how completely
the North has been taken in, in all her attempts to
secure herself from the effects of slavery. Patrick
Henry here thought this call for men to defend
the country would require a much larger propor-
tion of the white men of the South than of the
North; and, if men for our army and navy were
raised in the manner contemplated in the Constitu-
tion, it would undoubtedly have been found, by
the burden it would have put on their shoulders,
to have been too great for them. But the course
pursued is, no requisitions are now made ; most, if
not all, of our army and navy are composed of
volunteers, and of northern mén. The southern-
ers, accustomed to be masters, are too lazy to do
the drudgery of an army; even the defence of
their own territory falls on northern men. And
when, from the nature of the case, their presence
is thought to be absolutely necessary, as in the
case of the Florida war, they refuse to do the
ordinary work of soldiers; such, for instance, as
carrying their own provisions. We are surprised
any of our northern men will do it for them, —
consent to be their lackeys, merely for the sake of
laying their bones among the everglades of that
Territory; for there seems to be no other object;
at least, none other has as yet been attained. But,
as Mr. Giddings, of Ohio, in his late speech in
congress, has said, this whole war was nothing but
a negro hunt. We trust our northern people will
not be seen as soldiers in company with such a
banditti, whoever may be their captain-general.
7
216
VIRGINIA CONVENTION.
Mr. Henry, speaking of the power to call forth
the militia, said, -
6. The 10th section of the 1st article, to which refer-
ence has been made by the worthy member, (Mr. Gray-
son,) militates against himself. It says, 'No State shall
engage in war, unless actually invaded. If the country
be invaded, a State may go to war, but cannot suppress
insurrections. If there should happen to be an insurrec-
tion of slaves, the country cannot be said to be invaded.
They cannot therefore suppress it, without the interposi-
tion of congress. The 4th section of the 4th article ex-
pressly directs that, in case of domestic violence, congress
should protect the State, on application of the legislature
or executive; and the 8th section of the 1st article gives
congress power to call forth the militia to quiet insurrec-
tions. There cannot, therefore, be a concurrent power.
The State legislatures ought to have the power to call
forth the efforts of the militia when necessary. Occa-
sions for calling them out may be urgent, pressing, and
instantaneous. The States cannot now call them, let an
insurrection be ever so perilous, without an application
to congress : so long a delay may be fatal.” :
: “ There are three clauses which prove, beyond a pos-
sibility of a doubt, that congress, and congress only, can ·
call forth the militia. The clause giving congress power
10 call them out to suppress insurrections, &c. that which
restrains a State from engaging in war, except when ac-
tually invaded, and that which requires congress to pro-
tect- the States against domestic violence, render it im-
possible that a State can have power to intermeddle
with them.” 1
It would appear Mr. Henry thought that con-
'
Elliol's Reports, vol. ii. p. 315.
VIRGINIA CONVENTION.
217
gress had taken from the States all power to sup-
press an insurrection, and had made it a national
affair. Though not true as regards the power of a
State to suppress an insurrection of its inhabitants,
yet it is true that, when a State calls on congress
for ,assistance in case of an insurrection, she is
bound to give it; and consequently can it be said
the subject of slavery is sectional, not national ?
that the States have alone the right to legislate on
the subject? Such a supposition cannot be true.
Congress must have control over the subject, un-
less it be said, and with truth, that the States have
a right to involve the country in a civil war, by
their practices and laws, without any national
interference. Will any statesman say that this
may be the case? We think not. So long as
each and every part of the country alike are bound
to suppress an insurrection of slaves, so long do we
hold it that slavery is a national affair ; and the
North may not now hide herself, under the idea
that she has no concern with the subject. An
acquaintance with our history would make it ap-
parent that such an attempt on her part would be
like the foolish ostrich, who, when she is pursued,
and finds she cannot escape, or being unwilling to
be the witness of her own disgrace, thinks to evade
her pursuers, or be shielded from mortification, by
hiding her head under a leaf, or other small sub-
stance, while her whole body is left exposed to
attacks. And, also, all of the new States have
come into the Union through the consent of the
old States; and now, after giving their consent
19
218
VIRGINIA CONVENTION.
they should enter the Union, have they now no
farther control, or are they not implicated in the
system of slavery, if they will now tolerate it?
can they guarantee to the different States they
will protect them from an internal insurrection of
slaves, and yet put it out of their power to say
aught against this system ? If it is so, it is in
effect guaranteeing, as has been said, the system
of slavery. But this they have not done.
Mr. Madison, in answer to Mr. Henry, in his
supposition congress had unlimited control, said, -
" There is a powerful check in that paper. The
State governments are to govern the militia, when not :
called forth for general or national purposes, and con-
gress is to govern such part only as may be in the actual
service of the Union. Nothing can be more certain and
positive than this. It expressly empowers congress to
govern them when in the actual service of the United
States. It is then clear that States govern them when
they are not.
“ With respect to suppressing insurrections, I say that
these clauses, when they are mentioned by the honorable
gentleman, are compatible with a concurrence of the
power. By the first, congress is to call them forth to
suppress insurrections and repel invasions by foreign
powers. A concurrence in the former case is necessary,
because a whole State may be in an insurrection against
the Union. What has passed will perhaps justify this
apprehension.”
After speaking of the invasion of foreign states,
and even of a neighboring State, and of the power
1 Elliot's Reports, vol. ii. p.316.
VIRGINIA CONVENTION.
219
LE
to guarantee to each State a republican form of
government, he says, –
sc On application of the legislature or executive, as the
case may be, the militia of the other. States are to be
'called to suppress domestic insurrections. Does this bar
the States from calling forth their own militia? No!
but it gives them a supplementary security to suppress
insurrections and domestic violence.”
Mr. George Nicholas, in answer to Mr. Henry's
assertion that there was no power in the States to
quell an insurrection of slaves, asked, —
“ Have they it now? If they have, does the Constitu-
tion take it away? If it does, it must be in one of those
clauses which have been mentioned by the worthy mem-
ber. The first part gives the general government power
to call them out when necessary. Does this take it
away from the States ? No; but it gives an additional
security ; for, besides the power in the State government
to use their own militia, it will be the duty of the general
government to aid them with the strength of the Union,
when called for. No part of this Constitution can show
that this power is taken away.”
Let us not be deceived by the idle declama-
tion, that, although we at the North are liable to be
called upon to keep the slave in subjection, the
slave so loves his master, and is so attached to
his household, he would not rise in rebellion ; that
he had rather wear his bonds than have them
loosened from his limbs. This is not so: they
are constantly running away ; and their taking
shelter among the Indians in Florida has been
| Elliot's Reports, vol. ii. p. 318.
220
VIRGINIA CONVENTION.
.
the occasion of the Florida war, in which many
of the men and officers of our army have been
sacrificed, and forty millions of dollars have been
spent by the country. On the same account the
Cherokees have been removed from the land of
their fathers, though nearly, if not quite, as civil-
ized as those who desired their removal. There
our soldiers have been under arms, and our money
has been most profusely squandered. Again, i'm-
mediately after the Southampton insurrection, and
the intended insurrection in Wilmington, North
Carolina, our troops were called into service, and,
during the hottest portion of the year, had to take
their station in the cities of the South, to protect
the homes of the planter, while he was luxuriating
on the sea-shore, or had come to the North to
escape the sicknesses that are more especially at-
tendant on the white man in the warm latitudes
of our country; and but a short time since, our
troops have been ordered to Louisiana for a similar
purpose. Are these things to be continued forever,
and we say nothing about them ? · Are the hard-
working yeomanry of this latitude to be taken
from their fields, their families, and their friends,
to stand guard over the negro ? — the negro did we
say? no! the slave, we should have said, whether
white or black; for it makes no difference, at the
South, of what complexion the slave is: so long as
. In the Natchez Courier, printed in the State of" Mississippi, we
counted, in the course of three months, SEVENTY-six advertisements
for the recovery of persons, in Adams county alone in that Slate,
wlio had run away, or who had been committed to prison for so doing.
L
IA CONVENTION.
221
the mother was a slave, the child must be a slave
also. Must, then, the yeomạnry of the North be
sent to the South to keep the slave in subjection,
merely to support a few rich nabobs in idleness ?
Is our northern mother to bend with anxious solici-
tude over the cradle of her infant, and rejoice that
a man child is born into the world, for no other
purpose than that he may be reared with knapsack
on his back, and firelock in hand, with bayonet
fixed, ready to thrust it into a fellow-inortal, sim-
ply because his fellow does not wish to render an
involuntary service to another without compensa-
tion, without pay? Is this the purpose for which
mankind are sent into the world ? is this the pur-
pose for which the Constitution of these United
States was formed ? We hope the good sense of
the North will answer no! ay, even the South
will answer no!
· If, then, the whole strength of the military
power of this Union is at any and at all times
liable to be called into requisition to put down in-
surrections that may happen in any one of these
United States, it would seeni very strange if its
moral and political power may not be put in requi-
sition to prevent such a catastrophe, by rendering
that justice that can alone produce peace and har-
mony in the relations which different portions of
the body politic sustain to one another. It is idle for
the South to say, as we think, 'the United States:
as a body cannot interfere with slavery as it exists
there, when she has it in her power to call upon
that body to render any assistance she may ask to
19*
222
A CONVENTION.
keep her slaves in subjection, and worse than idle,
for the North to say she has nothing to do with
slavery, when she is thus liable to be called upon.
No! the country, the whole country, is guilty of
slavery, so long as it exists in any one of the
States, when the others are thus liable to be called
on to maintain it, unless, as we shall attempt to
show, she has provided means for every person in
his individual capacity tº attain his freedom.
But, if he in his individual capacity cannot, then
she is bound to give it.
Mr. George Mason, in speaking of section 9th,
which prevents congress from prohibiting the
slave-trade for twenty years, said, -
“This is a fatal section, which has created more dan-
gers than any other. The first clause allows the impor-
tation of slaves for twenty years. Under the royal gov- .
ernment, this evil was looked upon as a great oppression,
and many attempts were made to prevent it; but the
interest of the African merchant prevented its prohibition.
No sooner did the Revolution take place than it was
thought of. IT WAS ONE OF THE GREAT CAUSES OF OUR
SEPARATION FROM GREAT BRITAIN. Its exclusion has
been -a principal object of this State, and most of the
States of the Union. The augmentation of slaves
weakens the States ; and such a trade is diabolical in
itself, and disgraceful to mankind. Yet, by this Consti-
tution, it is continued for twenty years. As much as I
value the union of all the States, I would not admit the
Southern Slates into the Union unless they agreed to the
discontinuance of this disgraceful trade, because it would,
bring weakness, and not strength, to the Union. And,
though this infamous traffic be continued, we have no
VIRGINIA CONVENTION:
security for the property of that kind which we have
already. There is no clause to secure it ; for they may
lay şuch a tax as will amount to manumission. And
should this government. be, amended, still this detestable
kind of commerce cannot be discontinued till after the
expiration of twenty years; for the fifth article, which
provides for amendments, expressly excepts this clause.
I have ever looked upon this as the most disgraceful
thing to America. I cannot express my detestation of
it. Yet they have not secured to us the property of the
slaves we have already. So they have done what they
ought not to have done, and left undone that which they
ought to have done.”?
We find, according to Mr. Mason's understand-
ing of the Constitution, that slavery was far from
being guaranteed to the South. A most singular
inconsistency appears in this gentleman's ideas.
While he laments, and would have exerted his
utmost to have prevented, the slave-trade, and
considered it so disgraceful he could not even
express his abhorrence of it, and would even have
excluded the more southern States from coming
into the Union under the Constitution, if this
traffic must be continued, yet he is not prepared to,
and does not see how he can, give up his own
slaves, or see that the keeping of them involves
as much guilt as the traffic. For ourselves, we
cannot perceive why, if a man may be owned
with impunity, he may not be sold with impunity.
May a person not do what he will with his own?
The only way we can account for such incon-
.نم
Elliot's Reports, vol. ii. p. 335.
224
VIRGINIA CONVENTION.
sistency is, slavery, like alcohol, destroys the
moral sensibilities of our natures; our moral feel-
moral faculties, and they leave a man in compara-
tive moral darkness. We cannot account for
this on any other principle.
Mr. Madison, speaking of this 9th section, said,-
5 I should conceive this clause to be impolitic if it
could be excluded without greater evils. The Southern
States would not have entered into the Union of Ameri-
ca without the temporary permission of that trade. And
if they were excluded from the Union the consequences
might be dreadful to them and us. We are not in a
worse situation than before. That traffic is prohibited
by our laws, and we may continue the prohibition. The
Union, in general, is not in a worse situation. Under
the articles of Confederation it might be continued for-
ever, but by this clause an end may be put to it after
our circumstances. A tax,may be laid in the mean time, .
but it is limited; otherwise congress might lay such a tax
representation and taxation, congress cannot lay such a
tax on slaves as would amount to manumission. Another
clause secures us that property which we now possess.
At present, if any slave elopes to those States where:
slaves are free, he becomes emancipated by their laws;
for the laws of the States are uncharitable to one another
in this respect; bụt in this Constitution 'No person held
to service or labor in one State, under the laws thereof,
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.' This clause was expressly in.
VIRGINIA CONVENTION.
225
serted to enable owners of slaves to reclaim them. This
is a better security than any that now exists. No power
is given to the general government to interfere with re-
spect to the property in slaves now held by the States.
The taxation of this State being equal only to its repre-
sentation, such a tax cannot be laid as he supposes.
They cannot prevent the importation of slaves for twenty
years; but after that period they can. The gentlemen
from Georgia and South Carolina argued in this manner:
We have now liberty to import this species of property;
and much of the property now possessed has been pur-
chased, or otherwise acquired, in contemplation of im-
proving it by the assistance of imported slaves. What
would be the consequence of hindering us from it? The
slaves of Virginia would rise in value, and we be obliged
to go to your market.' I need not expatiate on this sub-
ject. Great as is the evil, a dismemberment of the
Union would be worse ; if these States should disunite
from other States for not indulging them in the tempora-
ry continuance of this traffic, they might solicit and ob-
tain aid from foreign powers."
It is a great pity the laws have not always been
considered uncharitable, and that no man-catcher
had ever been permitted by the justices of our
inferior courts to secure his victim and carry him
back to a state of bondage.
Mr. Madison seems here to say the convention
did actually make a provision that, in the manner
in which the representation and taxation went
together, it would be impossible for congress to
liberate the slaves by way of taxing them; and he
also cites the section which, it is said, concerns
Elliot's Reports, vol. ii. p. 335.
226
VIRGINIA CONVENTION.
runaway slaves; and he thought this would secure
the property they then possessed in slaves. He
appears perfectly willing no more of the colored
men should be stolen and brought to our shores ;
but he does not seem to reflect that all slaves are.
stolen property, and consequently the rightful own-
ers may take them whenever they think proper,
and they can be secured within their own power.
At least, this is the doctrine universally held with
regard to all other stolen property; and we have
yet to learn any good reason why this doctrine
should not hold good here; and, if so, who, it has
well been asked, has a better claim over the bones
and sinews of a man than he who carries them
about? If it is wicked to steal a man, it is as
wicked to retain a stolen man in our possession-
against his consent.
In the observations made by Mr. M. we have a
striking example of the inconsistency of man; and,
so far as it was meant to keep the slave in contin-
ual bondage, we will not in the least extenuate the
matter. But, in continuing his speech, and falling
upon the consequences that would result, if the
foreign slave-trade should be stopped, and they
continued to hold them in Virginia, and the do-
mestic trade should spring up, he began to sicken
at the contemplation that Virginia, the Old Domin-
ion, she who had produced her Washington, her
Jefferson, and such a galaxy of the lovers of liber-
ty, at least for themselves, should become a slave-
market for the farther South, and her renowned in
war and in council should degenerate into pro-
VIRGINIA CONVENTION.
227
ducers of slaves for Carolina and Georgia! Would
it not be enough to sicken any rational being, and
prevent him from expatiating upon a subject so
full of disgrace ? Before he died, must he not
have realized his forebodings, and must it not
have weighed down his spirits ? To prevent such
a catastrophe, and not to have it understood Virginia
was then ready to become a slave-breeding State
- though it has been said that, when the slave-
trade was finally prohibited, she was willing to
become one --- they permitted this abominable
traffic, from fear, as Mr. M. intimates, that the
South would obtain her slaves from Virginia,
rather than from Africa; and from the fear that
greater danger would result to the country, if a
union of the States was not effected. We can
V
nothing else could secure them from the most
gross hypocrisy. They did not know which way
to turn : to go forward in a generous emancipation,
they were not prepared ; and they knew not how
to go back to. a general dissolution of the States:
they dared 'not do either. To use the language,
as we have understood, of Jefferson, “they had
the wolf by the ears: to hold on was dangerous,
and to let go more so." They were not then, and
mankind are not now, ready to admit the doctrine
that it is far more safe to do right than continue in
the path of wrong; that it is better for all classes
that individual rights should be every where re-
spected; and that he who sows and he who reaps
should be alike rewarded ; and that, in fact, in
228
VIRGINIA CONVENTION.
proportion as the producing classes are intelligent
and well provided, so is the whole community
advanced in a state of civilization, manufactures,
and the arts. It is the intelligent workman who
can perceive 'when science can be applied, and
who makes improvements in machinery, and not
the man of letters: a man of letters may discover
principles, but it is the workman who applies these.
principles to his arts. ,
« Mr. Tyler warmly enlarged on the impolicy, iniquity,
and disgracefulness of this wicked traffic. He thought
the reasons urged by gentlemen in defence of it were
inconclusive and ill-founded. It was one cause of com-
plaint against British tyranny that this trade was permit-
ted. The Revolution put a period to it; but now it was
to be revived. He thought nothing could justify it. This
temporary restriction on congress militated, in his opin-
ion, against the arguments of gentlemen on the other
side, -- that what was not given up' was retained by the
States; for, if this restriction had not been inserted, con-
gress could have prohibited the African slave-trade.
The power of prohibíting it was not expressly delegated
to them; and yet they would have had it by implication,
if this restraint had not been provided. This seemed to
him to demonstrate most clearly the necessity of restrain-
1 We know of one instance where an intelligent mechanic, by
the name of Wright, has saved to our manufacturing establish-
ments perhaps hundreds of thousands of dollars, in applying ma-
chinery to the making the simple article of bobbin-heads; and of
another, by the name of Pickering, who, by making a snow-plough,
has saved the labor of hundreds of men, in clearing the tracks of
our railways; to say nothing of those who have made the improve-
ments and discoveries in the application of steam and machinery,
that are in constant use throughout this country and in Europe.
VIRGINIA CONVENTION.
229
,
ing them by a bill of rights from infringing our inaliena-
ble rights. It was immaterial whether the bill of rights
was by itself, or included in the Constitution. But he
contended for it, one way or the other. It would be
justified by our own example, and that of England: His
carnest desire was, it should be handed down to poster-,
ity that he had opposed this wicked clause.” 1
We will do what we can to let the world know
what opinion was entertained by Mr. Tyler on
this subject; and we will express the hope his
namesake entertains the same opinions.
“ He then adverted to the clauses which enabled con-
gress to legislate in the ten miles square, and other
places purchased for forts, magazines, &c.; to provide
for the general welfare ; to raise a standing army; and
to make any law that is necessary to carry these laws -
into execution. From the combined operation of these
unlimited powers he dreaded the most fatal conse-
quences," &c. &c.
We trust, however, with these powers, the
American citizen will yet be able to, and will,
grant that justice to the colored race which is their
due; and that this Constitution, as supposed by Mr.
Tyler, was adopted for the general welfare of the
people of the United States, and will be found
wholly incompatible with slavery, and totally opo,
posed to it; and that the best interest of this coun:
try will never be attained till that excrescence is
cut from the body politic, and consigned to the
tomb of the Capulets, never more to have a resur-
Elliot's Reports, vol. ii. p. 336.
20
230
VIRGINIA CONVENTION...
rection; that, if the courts do not decide against
it, it will yet be found by congress, upon investi-
gation, to be a stumbling-block in the way of all
improvement, and a barrier to the best interest of
our country; and that the restoring man to himself
will be the only way of securing peace and perma-
nent prosperity to our land; and that true liberty
cannot be established throughout this extensive
continent but by giving up this institution ; and
the sooner the better will it be for all concerned.
Mr. Madison, however, said, in answer to the lat-
ter objections made by Mr. Tyler, that "the gen-
tleman was mistaken; that the powers of congress
extended to those alone that were enumerated ;'
and, if congress attempted to exert powers not
enumerated, it would not be warranted by the
clause."
6 Mr. Henry insisted that the insertion of these re-
strictions on congress was a plain demonstration that
congress could exercise powers by implication. The
gentleman had admitted it could have interdicted the
African slave-trade, were it not for this restriction. If
so, the power not expressly delegated must be obtained
by implication. He demanded, where, then, was their
doctrine of reserved rights? He wished for negative
clauses, to prevent them from assuming any powers not
expressly given. He asked, why was it omitted to secure
us that property in slaves which we hold now? He
feared its omission was done with design. They might
lay such heavy taxes on slaves as would amount to
emancipation ; and then the Southern States would be
the only sufferers. His opinion was confirmed by the
mode of levying money. Congress, he observed, had
VIRGINIA CONVENTION.:
231
power to lay and collect taxes, imposts, and excises.
Imposts (or duties) and excises were to be uniform. But
this uniformity did not extend to taxes. This might
compel the Southern States to liberate their negroes. He
wished, therefore, this property to be guarded. He con-
sidered the clause that had been adduced by gentlemen
as security of this property as no security at all. It was
no more than this, – that a runaway negro might be
taken up in Maryland and New York. This could not
prevent congress from interfering with that property, by
laying a grievous and an enormous tax upon it, so as to
compel owners to emancipate their slaves, rather than to
pay the tax. He apprehended it would be the subject of
much stock-jobbing, and that they would play into one
another's hands in such a manner as that this property
would he lost to the country.”)
Mr. Henry's entire speech on this occasion, while
it shows his inconsistency as a man, shows also
his opinions of the powers of congress. He FEARS
they have designedly omitted some expressions,
that, if used, would have established him in his
said, he feared it was done designedly, we may
suppose him correct in his fears. No one denied,
so far as is reported, that Mr. Henry was incorrect
in these insinuations. An explanation is given in
another place by Mr. Madison, and Mr. Randolph,
of which we shall leave the reader to judge.
.
-
to the country by being a freeman instead of a
slave! What an idea for one of the greatest
' Elliot's Reports, vol. ii. p. 337.
232
VIRGINIA CONVENTION. .
advocates in the country for freedom, in its most
extensive sense, when his own rights were con-
cerned! But who shall explain the inconsistency:
of man? A person who had kept a whole State in
suspense for three or four weeks because, in some
- remote degree, the Constitution that was proposed
for adoption was thought to contain paragraphs
that might have deleterious effects upon the liber-
ty of certain individuals ; yet complaining it did
not hold others with an iron grasp, and even be-
cause masters should be taxed for their slaves! :
We all know how anxious the South were to re-
lieve themselves from the imposition of this tax ;
and, as we have observed before, they succeeded ;
and, as Mr. H. supposed, there was a good deal of
stock-jobbing ; but it all happened to be on the
wrong side ; and, instead of the negroes being freed,
they have so arranged it, the master pays no tax
for his negro, and the slave has been made more
secure in his bondage.
6 Mr. George Nicholas wondered, [and well he might,]
that gentlemen who were against slavery would be op-
posed to this clause, as, after that period, the slave-trade
would be done away. He asked if gentlemen did not
see the inconsistency of their arguments ? they object,
says he, to the Constitution, because the slave-trade is.
laid open for twenty odd years; and yet tell you that, by
some latent operation of it, the slaves, who are so nową.
will be manumitted. At the same moment it is opposed
for being promotive and destructive of slavery. He con
tended it would be advantageous to Virginia, that it would
be in the power of congress. to prevent the importation of
VIRGINIA CONVENTION.
233
..
slaves after twenty years, as it would then put a period
to the evil complained of."'?
It would seem, from the arguments of all the
gentlemen, both from the North and from the
South, that the destruction of the slave-trade
would put an end to slavery. Perhaps it would
have so done, "had there not been a home market,
and a home supply. But, instead of the destruc-
tion of the foreign slave-trade decreasing the
number of the slaves in this country, they have
gone on constantly increasing, till their numbers
have become, if it is intended to keep them as
slaves, alarmingly great.
Mr. Nicholas then spoke of the difficulty of
effecting the union without this clause ; that
Virginia might continue the prohibition of the
slave-trade; the superior advantages they possessed
in not having more than two fifths of their slaves
taxed instead of the whole number, and that the
taxes could not be laid so high as to amount to
emancipation ; and, among other things, said, "I
can tell the committee that the people of our coun-
try are reduced to beggary by the taxes on negroes.”
" Had this Constitution been adopted, it would not
have been the case. The taxes were laid on all
our negroes. By this system, two fifths are ex-
empted.” He then added, “He had imagined
gentlemen would not support here what they had
opposed in another place.”
Mr. Henry made a short answer, and said, -
I
!
. 1 Elliot's Reports, vol. ii. p. 337.
20*
2VIRGINIA CONVENTION.
234
.
:
.
.
- Personalities he wished to take leave of; they had
nothing to do with the question, which was solely whether
that paper was wrong or not.”
“ Mr. Nicholas replied, that negroes must be consid-
ered as persons or property. If as property, the propor-
tion of taxes to be laid on them was fixed in the Consti-
tution. If he apprehended a full tax on negroes, the
Constitution has prevented it. For, by the census, when
a white man paid ten shillings, a negro paid but six;
for the exemption of two fifths of them reduced it to that
proportion.”
Mr. Henry, it would seem, had opposed slavery
in some other place; but, for some reason or other,
- we know not what, -- he had taken different
ground in the convention, and Mr. Nicholas re-
minded him of it, at which Mr. Henry took of-
fence, and did not seein desirous his inconsistency
should be pointed out. The course he took in the
convention on this subject will not, we think, add.
to his renown as a statesman or a philanthropist.
With regard to the tax spoken of, the slavehold-
er does not now pay even the six shillings; for
not only is the burden of a direct tax thrown off,
but nearly all the articles the slave uses, as we
have before remarked, are manufactured or pro-
duced in this country; and consequently he pays
no revenue: Here are nearly three millions of
individuals, who are both willing and able to help
support the government of our country, but who
are not permitted; while a great portion of the
whole burden of its support falls upon the North,
who are now not allowed to be heard upon the
· Elliol's Reports, vol. ii. p.338.
VIRGINIA CONVENTION.
235
floor of congress! and our politicians, if they can
gain a place, are willing to have it so; and our
reviewers are trying to argue the North has no
interest in the matter !!!
In speaking of the powers of the Supreme
Court, Mr. Grayson said, -
66. The jurisdiction in all cases arising under the Con-
stitution and the laws of the Union is of stupendous
magnitude. It is impossible for human nature to learn
its extent. It is so vaguely and indefinitely expressed,
that its latitude cannot be ascertained. Citizens or sub-
jects of foreign states may sue citizens of different States
in the federal courts. It is extremely impolitic to place
foreigners in a better situation than our own citizens.
This never was the policy of other nations. It was the
policy of England to put foreigners on a secure footing.”]
“This high court has not very extensive original juris-
diction. It is not material; but its appellate jurisdiction
is of immense magnitude; and what has it in view, un- -
less to subvert the State governments? The honorable
gentleman who presides has introduced the high court of
appeals. I wish the federal appellate court was on the
same foundation. If we investigate the subject, we shall
find this jurisdiction perfectly unnecessary. It is said
that its object is to prevent subordinate tribunals from
making unjust decisions to defraud creditors. I grant
the suspicion is in some measure just. But would not
an appeal to the State court of appeal, or superior tribu-
nals, correct the decision of inferior courts? Would not
this put every thing right? There then would be no
interference of jurisdiction.” 2
Speaking of the State courts, and the courts of
Elliot's Reports, vol. ii. p. 414.
2 Idem, vol. ii. p. 416.
(236
VIRGINIA CONVENTION.
the United States, he says, “Both courts are to
act on the same persons and things, and cannot
possibly avoid interference.” 1
Mr. George Mason, in remarking on the second
section, said, —
os On a former part of the investigation of this subject.
gentlemen were pleased to make some observations on .
the security of property [meaning slaves] coming with-
in this section. It was then said, and I now say, that
there is no security, nor have gentlemen convinced me
of this." 2
Without further debate the third section was
then read.
We will here ask, is not a man's. Jiberty of more.
consequence than money ? and, if he is defrauded -
of this liberty, has not the court jurisdiction ? and,
if the inferior courts make a wrong decision on
the subject, may not the Supreme Court have
these courts order a man back to slavery without
there has been proved before them that the person
claimed is indebted by contract, of his own mak-'
ing, to the person who claims his service, may not
an appeal be properly made, or judgment be given,
and then an appeal be made to the Supreme Court
for its jurisdiction and judgment ? And, agreeably
to the 4th, 5th, 6th, 8th, and 10th articles of the
amendments to the. Constitution, if a person called
a slave is "seized in his person," or punished
without a trial by jury before some public authori-
Elliot's Reports, vol. ii. p.417.
2 Idem, vol. ii. p. 428.
'VIRGINIA CONVENTION.
237
ties, may not the so called master be brought be-
fore it for transgressing these express articles of
the amendments, one of which (the 8th) was
made on purpose to suit his case? We hope it
will not be long before some humane people, either
at the North or South, will be able to test the
question, whether a master can whip or restrain a
slave; on his own authority, and in pursuance of
this Constitution.
Hon. George Mason, that the Constitution provid-
ed no security for property in slaves : he could
see none in the Constitution, and no one in the
Virginia convention could point out any to him.
Massachusetts had already adopted the Constitu-
tion, recommending amendments, securing in a
greater degree the individual rights of every per-
son, " whether residing on the banks of the Sa-
vannah," or "on the margin of the Kennebec,"
because soine of the members of that State,
thought these rights were not sufficiently secured
in the instrument submitted for their adoption, and
Mr. Mason undoubtedly knew of these amend-
ments proposed by her. And, while no allusion is
made to these amendments, neither he; nor any of
the Virginia delegation, so far as the reports show,
could perceive where slave property was at all se-
cured by that instrument; saving that, as it was af-
terwards argued, because the so called slave could
be taken up in another State, it could not be suppos-
ed that, after he was taken back, the master could
238
VIRGINIA CONVENTION.
amendments made to this clause, we cannot sup-
pose it was intended, by those who made these
amendments, to return the runaway slave : such
cannot be admitted, unless we admit their duplici-
ty,--a charge for which, for ourself, we have not
sufficient evidence. If we are correct, and as Mr.
Madison said there must not be two principles in
that instrument, where, then, we ask, is the evidence
of the guaranty, or compact, that has been so often
rung as a bugbear in the ears of the North ? there
is none; there was none. If a few gentlemen in
congress, unknown to the public, said the sub-
ject should or would not be disturbed by the North,
it was done, if done at all — and we have no evi-
dence it was done --without any authority given to
do it, even if they had the inclination. But we
do not believe the inclination to any extent ex-
isted : all seemed ready to give up the system but
South Carolina and Georgia; and they, as was
said, only wanted to make up a deficiency of la-
borers; and, as white people could not work in
those States, their only alternative, as they af-
firmed, was to obtain them from Africa; and, when
the slave-trade ended, then ought to have ended
slavery. We do not, then, improperly interfere in
urging the South to fulfil her engagement to the
world, to have this a free country, nor should we,
by obtaining a decision of the court that no
person can be held in bondage by the Constitu-
tion of our country, break any contract that
we, as northerners, have made. It has contin-
ued longer than it ought to have continued, and
VIRGINIA CONVENTION.
239
)
longer, on trust, than the civilized world will per-
mit it to continue. We should both blush and be
ashamed for our ingratitude to those men who as-
sisted us in our distress, on the ground that this
country should be a land where the people of all
nations should be secure in their individual rights,
and every man be able to sit under his own vine
. and fig-tree, without any to molest or make afraid.
Will there, then, be no lawyer who will undertake
the task to maintain an action of the kind before the
highest court of the country? Can there be no case,
either as original or appellate, that can be searched
out, and made to be the pioneer of a succession of
cases, till freedom to individuals is universally ac-
knowledged ? We hope there will be, and the
time will not be distant when a decision can be
had, and the rights of the slave acknowledged.
They can certainly appeal to the observations here
made by Mr. Mason, that the courts have power
over the subject; that slavery does come within
their jurisdiction ; and that not only Mr. Mason,
but the whole of the Virginia delegation, silently
admitted the fact; and, when the 'suggestion was
made, the sụbject was dropped, as too delicate for
further discussion. Can and need there be farther
proof that such is the case ? Were the men of this
assembly too insignificant. to be authority in the
case ? Was not Madison, Randolph, Munroe,
Nicholas, Grayson, Henry, Mason; capable of dis-
cernment ?
My colored friends, it is a pity none of you ever
discovered this truth, and have not applied your-
1
240
VIRGINIA CONVENTION.
:
IC
selves to urge upon the consideration of the courts
the wrongs under which you have suffered, and
caused them -as we think they must have done -
to have rendered a judgment in your favor.
We are aware it is said the consideration which
was given the free States for the continuance of
slavery, or, rather, that the three fifths representation
should take place, besides the preventing congress
passing navigation acts, was, that they in general
were small States, while the slave States were com-
paratively large; consequently they admitted the
small States to an equal representation on the floor
of the senate. But this cannot amount to much, for
it is well known the States had an equal representa-
tion under the Confederacy; that is, one State had
as many representatives as another, and therefore
they did surrender much when they allowed the
larger States a greater representation in the house
of representatives ; for we have seen Mr. Martin, of
Maryland, says some of the small States expressly
instructed their delegates not to give up an equal
representation; as, if they did, they would be
swallowed up by the larger States ; but they
finally consented to the present arrangement.
There are now, however, as many large free
as there are large slave States ; but this, in fact,
was not the case : not passing the navigation
act was alone a consideration for permitting the
slave-trade to be continued till 1808. No other
contract, that we have yet been able to discover,
was ever entered into : the size of the States had
no relation to the subject..
a
VIRGINIA CONVENTION.
241.
Mr. Henry, on the resolution for the ratification
of the Constitution, with certain amendments,
said, '
“ The honorable member must forgive me for de- :
claring my dissent from it; because, if I understand it
rightly, it admits the new system is defective, and most
capitally ; for, immediately after the proposed ratifica-
tion, there comes a declaration that the paper before you
is not intended to violate any of these three great rights,
- the liberty of religion, the liberty of the press, and
the trial by jury. What is the inference, when you
enumerate the rights you are to enjoy?. That those not
enumerated are to be relinquished. There are only
three things to be retained, - religion, freedom of the
press, and jury trial. Will not the ratification carry
every thing, without excepting these three things ? Will
not all the world pronounce that we intended to give up
all the rest ? Every thing, by way of right, is compre-
hended in these three things. Your subsequent amend--
ments only go to these three amendments.” 1
“ Among the ten thousand implied powers which they
may assume, they may, if we be engaged in war, liber-
ate every one of your slaves if they please. And this
must and will be done by men, a majority of whom have
not a common interest with you. They will, therefore,
have no feeling for your interest. It has been repeatedly
said here that the great object of a national government
was national defence. That power which is said to be in-
tended for security and safety may be rendered detesta-
ble and oppressive. If you give power to the general
government to provide for the general defence, the
means must be commensurate to the end. All the
1 Elliot's Reports, vol. ii. p. 430.
21
242
VIRGINIA CONVENTION.
means in possession of the people must be given to the
government which is intrusted with the public defence.
- In this State there are 236,000 blacks, and there are
many in several other States ; and yet, if the northern
States shall be of opinion that our numbers are number-
less, they may call forth every national resource. May
congress not say every black man must fight ? Did we
not see a little of this in the last war? We were not so
hard pushed as to make emancipation general; but acts of
assembly passed, that every slave that would go to the
army should be free. Another thing will bring this
about. Slavery is detested ; we feel its fatal effects;
we deplore it with all the pity of humanity. Let all
these considerations at sorne future period press with full
force on the minds of congress. Let that urbanily
which I trust will distinguish America, and the necessi-
ty of national defence, — let all these things operate on
their minds, and they will search that paper, and see if
they have power of manumission. And have they not, sir ?
Have they not power to provide for the general deſence
and welfare? May they not think these call for the
abolition of slavery ? May they not pronounce all
slaves free, and will they not be warranted by that
power ? there is no ambiguous implication, or logical
deduction. The paper speaks to the point. "They have
the power, in clear, unequivocal terms, and will clearly
and certainly exercise it. As much as I deplore slavery,
I see that freedom forbids its abolition. I deny the gen-
eral government ought to set them free, because a de-
cided majority of the States have not the ties of sympa-
thy and fellow-feeling for those whose interest would be
affected by their emancipation. The majority of con-
gress is to the North, and the slaves to the South. In
this situation I see a great deal of the property of the
people of Virginia in jeopardy, and their peace and tran-
0
It
.
VIRGINIA CONVENTION.
- 243
quillity given away. I repeat it again, that it would re-
joice my very soul that every one of my fellow-beings
were emancipated. As we ought to acknowledge with
gratitude that decree of Heaven which has numbered
us among the free, we ought to lament and deplore the
necessity of holding our fellow-men in bondage. But is
it practicable, by any human means, to liberate them
without producing the most dreadful and ruinous conse-
quences? We ought to possess them in the manner we
lave inherited them from our ancestors, as their manu-
mission is incompatible with the felicity of the country.
But we ought to soften, as much as possible, the rigors
of their unhappy fate. I know that, in a variety of par-
ticular instances, the legislature, listening to complaints,
have admitted their emancipation. Let me not dwell on
this subject. I will only add that this, as well as every
other property of the people of Virginia, is in jeopardy,
and put into the hands of those who have no similarity
of situation with us. This is a local matter, and I can
see no propriety in subjecling it to congress.”
These expressions of Mr. Henry probably ex-
plain the cause of his action, and his inconsisten-
cies: it was that the sympathies of a people afar
off — a people who were not of them - would un-
dertake to interfere in their domestic concerns.
This he did not want to have done: he saw the
Constitution gave this power, and, if we believe
him sincere in his deploring slavery, he wished to
have the sole control over the subject. He la-
bored under the false idea there was property in
man, and that the State would be reduced to pov-
erty if the slave should be emancipated. In
UV
Elliot's Reports, vol. ii. p. 431.
244
VIRGINIA CONVENTION.
fact, there is no property in man; so far from it,
slave labor is not so valuable as free ; and conse-
quently the master is a loser by keeping him. He
is valuable only when he is let out, or is made an
article of produce or of merchandise. In all cases
of labor," the free man is the cheapest; and the
result would be, the planter would be a gainer by
changing his system of labor. As a practical evi-
dence that such would be the fact, we håve only
to look at the North and at the British West India
Islands, as a fair illustration. Therefore, if any
gentlemen, who really entertain any honest fears
in regard to immediate emancipation, and, like Mr.
Henry, are fearful of pursuing the path that leads
to universal liberty, they have now only to turn
their eyes to us and to the isles of the ocean, or
compare the condition of the North with that of
the South, to allay their fears. But if, on the
other hand, they mean to change the policy of the
country, and to make this continent a dwelling-
place for slaves, instead of a land for the free, then,
we say, it is time for the lovers. of liberty -- for
we cannot say for the American people — to arouse
themselves, and see that such shall not be the
case.
Gov. Randolph asked Mr. Henry, " Where, in
the paper subrnitted by Mr. Withe, do you discov-
er the people of Virginia are tenacious of their
rights only ? ſt declares that all power comes
from the people, and that whatever is not granted
by them remains with them; that among other
things remaining with them are liberty of the
-
-
-
VIRGINIA CONVENTION.
245
press, right of conscience, and some other essential
rights.?' 1 He then goes on to say, -
“ The honorable gentleman and some others have in-
sisted that the abolition of slavery will result from it,
and at the same time have complained that it encourages
its continuation. The inconsistency proves, in some
degree, the futility of their arguments. But, if it be not
conclusive to satisfy the committee that there is no dan-
ger of enfranchisement taking place, I beg leave to refer
i them to the paper itself. I hope there are none here,
who, considering the subject in the calm light of philoso-
phy, will advance an objection dishonorable to Virginia,-
that at the moment they are securing the rights of her
citizens, that an objection is started, there is a SPARK of
hope that these unfortunate men, now held in bondage,
may, by the operation of the general government, be
made free. But, if any gentleman be terrified by this
apprehension, let him read the system. . I ask, and I will
ask again and again, till I be answered, — not by dec.
lamation, --- where is the part that has a tendency to the
abolition of slavery? Is it in the clause which says that
the migration or importation of such persons as any of
the States now existing think proper to admit shall not
be prohibited by congress prior to the year 1808?' This
is an exception from the power of regulating commerce,
and the restriction is only to continue till 1808. Here
congress can, by the exercise, prevent future importa-
tions ; but does it affect the existing state of slavery ?
Were it right here to mention what passed in the con-.
vention on the occasion, I might tell you that the South-
ern States, even South Carolina herself, conceived this
property to be secure by these words. I believe that,
1 Elliot's Reports, vol. ii. p. 436.
21*
246
VIRGINIA CONVENTION.
i
whatever we may think here, there was not a member
of the Virginia delegation who had the smallest suspicion
of the abolition of slavery. Go to their meaning. Point
out the clause where this formidable power of emancipa.
tion is inserted. But another clause proves the absurdity
of the supposition. The words of the clause are, "No
person held to service or labor in one State, under the
laws thereof, escaping into another State, can, in conse-
quence 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. Every one knows that slaves are held to service:
or labor. And, when authority is given to owners of
slaves to vindicate their property, can it be supposed
they can be deprived of it? If a citizen of this State, in
consequence of this clause, can take his runaway slave
in Maryland, can it be seriously thought that, after taking
him and bringing him home, he could be made free?
“I observe the honorable gentleman's proposition
comes in a very questionable shape, and is still more
extraordinary and unaccountable from another considers
ation, -- that, although we went article by article through
the Constitution, and although we did not expect a gen. :
eral review of the subject, —- as a comprehensive view
had been taken of it before it was regularly debated, -
yet we are carried back to the clause giving that dreadful.
power for the general welfare. · Pardon me, if I remind
you of the true state of that business. I appeal to the
candor of the honorable gentleman; and, if he thinks it
an improper appeal, I ask the gentlemen here, whether
there be a general, indefinite power of providing for the
general welfare. The power is, 'to lay. and collect
taxes, duties, imposts, and excises, to pay the debts, and
provide for the common defence and general welfare. ..
So they can only raise money by these means, in order.
VIRGINIA CONVENTION.
to provide for the general welfare. No man who reads
it can say it is general, as the honorable gentleman rep-
resents it. You must violate every rule of construction
and common sense, if you sever it from the power of
raising money, and annex it to any thing else, in order
to make it that formidable power which it is represented
to be.”
In reviewing these remarks made by Gov. Ran-
dolph, we will first make the inquiry, what was
said in the convention ? Certainly, if any thing
was said too improper to be repeated before the
convention of Virginia, the ideas should be consid-
ered too improper to be acted out before the world.
But here, we suppose, Mr. Randolph alludes to the
vaunted compact; but what does it all amount to?
Why, some of the members of the convention said
something which Mr. R. was ashamed to repeat,
- that South Carolina was satisfied, because
congress permitted the slave-trade to continue
twenty years longer; and the delegates of Virginia
were satisfied, because congress permitted a man
to be transferred from one State to another, if he
owed service or labor to any one who might claim
this ownership of labor, if it was proved to be due.
But, as Mr. Wilson, of Philadelphia - as we
shall see. — said, there was no compact; this paper,
was a straight-forward paper; it meant what it
said, and nothing more. Pennsylvania, thereby
disclaiming any compact, and Massachusetts, fear-
ing the slaveholder might take advantage of what
might have been said, disclaimed having any thing
to do with such a compact, and introduced an
TI
Y
248
VIRGINIA CONVENTION.
amendment to do away the authority of the mas-
ter; and congress afterwards refusing to admit the
word “freeman" in some of the amendments Vir-
ginia recommended, (which was probably put in
for the very purpose of doing away the objections
of Mr. Henry,) which amendments were after-
wards adopted as part of the Constitution, after
having this word “freeman” stricken out, conse-
quently leaving, and, as we must perceive, with
design, the amendments devoid of any expression
that would involve them in contradictions, and
consequently left the word “person" in the Con-
stitution to mean all persons, whether white or
colored, bond or free; so that, even if the conven-
tion had made an open and avowed compact, the
people disannulled it.
Is there not a dishonorable suggestion in that
sentiment, that, while they were legislating for
the freedom of the white citizen, “there might be
a ray of hope the black man should be free ;” and
yet, by artfully contrived wordings of certain por-
tions of the Constitution, it is here given us to
understand a sixth part of the population of the
country was to be kept in bondage, and no power
lodged any where to have their fetters broken?
O shame! where is thy blush ?
The question might here be asked, what are the
debts of the Union, and how came they to be con-
tracted? Were they contracted, and are they only
to be contracted, for having our guns scoured, and".
hiring 'men to butcher one another? and do we
contract, and must we not contract, debts for any
.
VIRGINIA CONVENTION. .
249
other purpose ? and when the general welfare has
been consulted in any other way, and money is
spent for the object, must it at once be pronounced
unconstitutional ? And is it always to be so?
Cannot mankind learn a lesson,- that it is equally
as safe, as pleasant, and as satisfactory, to treat
one another as friends and brothers, as it is to be
constantly fighting, and making it their_boast they
have been the cause of the death of thousands,
and have made tens of thousands widows and
orphans ? We are aware, if slavery is continued,
there is no alternative. If one half of our country-
men mean to imbrute and enslave the other half,
we must be kept in a constant state of bloody
excitement. Fightings among ourselves can never
cease : a good portion of our community, as has
lately been proposed by our late secretary of war,
Mr. Poinsett, must be kept constantly ready for ser-
vice, and to shoulder their muskets to maintain a
system of outrage against human nature. We
cannot but suppose this suggestion of his arose
from the fear entertained by the holders of human
beings as property. The slaveholders, knowing
that the position they hold is one wholly opposed
to à peaceful state of society, and that they cannot
maintain their position but by brute force, conse-
quently are willing to forego all the blessings
peace brings in its train, in order to enjoy a brief
hour of tyranny and oppression. We stop not
here to inquire how utterly at variance, in the
manner of providing for the common defence and
general welfare, these ideas are with those enter-
250
VIRGINIA CONVENTION.
tained by the people of the country who gave
their sanction to the Constitution ; but we do say
here, we hope the American people will never
submit to such a departure from the State right
principles of that day as to raise such a standing
army, but be more jealous than they ever have.
been for the liberties they now enjoy.
Mr. Madison coincided with Gov. Randolph re-
specting the reserved rights of the States, and
observed,
"I was struck with surprise when I heard him express
himself alarmed with respect to the emancipation of
slaves. Let me ask, if they should ever attempt it, if it
will not be an usurpation of power? There is no power
to warrant it in that paper. If there be, I know it not.
But why should it be done? Says the honorable gentle-
man, for the general welfare ; it will infuse strength into
our system. Can any member of this committee suppose
that it will increase our strength ? Can any one believe
that the American councils will come into a measure
which will strip them of their property, discourage and
alienate the affections of five thirteenths of the Union ?
Why was nothing of this sort aimed at before ? I be-
lieve such an idea never entered into an American
breast, nor do I believe it ever will, unless it will enter
into the heads of those gentlemen who substitute unsup-
ported suspicions for reasons." !
given in the general welfare is not ample ? No!
it only never entered his mind that a general
emancipation could ever be for the general welfare.
| Elliot's Reports, vol. ii. p. 452.
VIRGINIA CONVENTION.
251
He could not conceive how a general emancipa-
tion could increase the strength of the country.
But if it could be proved it would be for the
general welfare, that strength would be infused
into the system, that it would not strip them of
property, but even make their real property more
valuable, and would allay the heart-burnings which
slavery has already engendered, and must continue
so to do, what then would be his answer? But he
says he sees no power in that paper to warrant a
general emancipation, and “if it was exercised it :
would be an usurpation ;" and "that such an idea
never entered an American breast, and that it
never would enter into the head of any gentlemen
but those who substituted unsupported suspicions
for reasons." But such an idea did enter the head
of Patrick Henry; it has entered into the heads
of other gentlemen, and we trust it will enter into
the heads of more than it has already. For what
did the American people form a. Constitution ?
What was the object? Was it simply that they
might declare war, regulate commerce, and coerce
money from the pockets of the people to pay the
debts of a general government for performing these
acts ? Has the general government, we repeat,
nothing else to do but to keep a standing military
force, to establish custom-houses along our coasts,
keep a register of our vessels, and then pay the
men for doing this business ? and that the doing
any thing for the general welfare, the securing
liberty to ourselves and our posterity were idle
dreams, and that the person who could suppose
252
VIRGINIA CONVENTION.
such could have been the object of any one of that
day, or in coming time, were only those “who
substitute unsupported suspicions for reasons ? "
We will admit the paying the debts of that day
was pretty important; and if it takes two thousand
dollars to collect an hundred, as it is reported to
have done for the past few years in the State of
Maine, and paying forty millions of dollars to hunt
fugitive slaves in Florida during the same term,
the necessity of paying the debts contracted in our
own time will become equally as important as it
was then. But we believe the American people
had some other object in view; they did mean the
general government should have it in their power
to promote the general welfare when that welfare
could be clearly ascertained. True, there may
be a great difference of opinion what may be
for the general welfare ; but when anything
for it could be clearly pointed out, then it could
be carried into effect, if the liberty of the indi-
vidual was not infringed upon; but the moment
that was done their power ceased, because it
was to secure'this liberty they declare was one of
the objects for forming this Constitution. This
the people understood; it was to this they gave
their sanction. Mr. Zedekiah Johnston - and his
name should be kept in remembrance for the ideas
he entertained and expressed —- understood it so;
and he, for one, was willing that slavery should be
made to cease. We hope he has some descendants
left in Virginia ; and, if they entertain his opinions,
we do not care how many are scattered over the
VIRGINIA CONVENTION.
253
Southern States. We trust an army of such men
will appear there before long.
The people, if we are correct, consented to the
Constitution, on the principle that individual rights
were secured, and on no. other; and, when any
thing could be done, consistently with those rights,' .
for the general welfare, it was in the power of
congress to do it. Congress has exercised this
right in purchasing Louisiana, establishing a bank,
in giving bounties to fishermen, in making a Cum-
berland road, in fitting out an exploring expedition,
&c. &c. True, the right of doing so has been
denied, yet, in some shape or other, this right has
been exercised, from the time the Constitution was
adopted to the present moment. It is not, how-
ever, our plan here to give opinions on this sub-
ject, but simply to state facts. If, then, congress
has exercised the right, under the sanction of the
government and of the people, in assisting a valua-
ble class of citizens, &c. &c. may she not interfere,
and protect one sixth of our population from being
deprived of all their rights? The experiment, at
least, of sustaining them in those rights, to ascer-
tain whether the negro, the colored man, the slave,
has not as much ability of sustaining himself
as the fowls of the air, or the beasts of the field ?
whether God has not made the human species
when it possesses a dark skin, capable of taking
care of themselves? whether, when the hue of the
skin varies from the whiteness of the snow, man-
kind then become savages, thieves, robbers, mur-
derers ? that they then possess not the principles
22
254
VIRGINIA CONVENTION.
of natural affections, of virtue, of religion, of honu
esty ? At any rate, we think it would be an experi-
ment well worth trying, and at least of as much
importance, as the atternpt to know whether the
country could get along without a United States
Bank. We trust it would prove, with a vast deal
more success, though in both cases we might hope
the experiment would not fail.
Mr. Harrison, on the general question, and near-
ly at the end of the debate, said, -
“ The situation and disposition of the States' render
subsequent amendments dangerous and impolitic, and
previous amendments eligible.
“New Hampshire does not approve of the Constitu-
tion as it stands. They have refused it so. In Massa-
chusetts we are told that there was a decided majority
in their convention who opposed the Constitution as it
stood, and were in favor of previous amendments, but
were afterwards, by the address and artifice of the
federalists, prevailed upon to ratify it.'
“ Rhode Island is not worthy of the attention of this
house. She is of no weight or importance to influence
any general subject of consequence.?
1 We understand, from Mr. Benjamin Russell, who was the re-
porter to the convention, there was, on a careful count, found to be
just two thirds, on the arrival of the members to attend the conven-
tion, who were opposed to the Constitution.
. ? What does the State of Roger Williams say to this? or may
we suppose that it is this good opinion entertained of her by our
southern friends, she, in turn, has been so ready to uphold the slave-
holder in his acts, since this great struggle for freedom has com-
menced ?
We understand, when the congress of the Confederation pro-
posed to the several States to lay a duty of 5 per cent. on certain
VIRGINIA CONVENTION.
255
“ Connecticut adopted it without proposing amend-
ments.
" New York, we have every reason to believe, will re-
ject the Constitution, unless amendments be obtained.
Hence it clearly appears that there are three States
which wish for amendments.
" Jersey, Pennsylvania, and Delaware, have adopted it
unconditionally.
“ In Maryland there are a considerable number who
wish amendments to be had.
“ Virginia is divided, let this question be determined
which way it will. One half of the people, at least, wish
ámendments to be obtained.
“North Carolina has decided against it. South Caro-
lina has proposed amendments..
“ Under this representation it appears there are seven
States that wish to get amendments. Can it be doubted,
if these seven States insist on amendments as the condi.
tion of their accession, that they would not be agreed to ?
Let us not be persuaded into an opinion, that the Union
will be dissolved if we reject it. I have no such idea.” 1
Mr. Innes, in a speech in favor of adopting the
Constitution, without previous amendments, or,
rather, without insisting on amendments before
adopting the Constitution, said, -
articles :of importation to pay the debts of the country, Massa-
chusetts complied with the requisition.' A few weeks after this
compliance on the part of Massachusetts, Rhode Island passed
a resolve to give a bounty of the same amount on the same articles.
if imported into that State !!
It was probably such acts as these on the part of some of the
Stales which made Washington and other statesmen of the day
see the necessity of a change of government, if they meant the
country should fulfil its engagements to the world.
* Elliot's Reports, vol. ii. p. 457.
256
VIRGINIA CONVENTION,
66 Virginia first discovered the defects of the existing
Confederacy.' When the legislature was sitting a few
years ago, they sent an invitation to the other States to
make amendments to it. After some preparatory steps,
the late federal convention was called. To this was
sent select deputies from all the States except Rhode
Island. After five months spent in tedious investigation,
they with great difficulty devised the paper on the table,
and it has been adopted by every State which has con-
sidered and discussed it.”
Mr. Zedekiah Johnston, in urging the adoption
of the Constitution, observed, -
“They tell us they see a progressive danger of bring-
ing about emancipation. The principle has begun since
the revolution. Let us do what we will it will come
round. Slavery has been the foundations of that impiety
and dissipation which have been so much disseminated
among our countrymen. If it were totally abolished it
would do much good.” |
The discussion, after a few more had spoken,
came to a close ; and the president (Mr. Edward
Pendleton) took the chair, and Mr. Matthews
reported, -
46 That the committee, according to order, had again
the proposed Constitution under their consideration; and
had gone through the same, and had come to several
resolutions thereupon, which he read in his place, and
afterwards delivered them in to the clerk's table, and
were as follows:
“Whereas the powers granted under the proposed
Constitution are the gifts of the people, and every power
"Elliot's Reports, vol. ii. p. 470,
VIRGINIA CONVENTION.
257
not granted thereby remains with them and are at their
will, no right, therefore, of any denomination can be
canceled, abridged, restrained, or modified by the con-
gress, by the senate or house of representatives, acting
in any capacity, by the president, or any department or
officer of the United States, except in those instances in
which power is given by the Constitution for those pur-
poses; and, among other essential rights, liberty of con-
science and of the press cannot be canceled, abridged,
restrained, or modified by any authority of the United.
States.
“And whereas any imperfection which may exist în
said Constitution ought rather to be examined in the
mode prescribed therein for, obtaining amendments than
by a delay, with a hope of obtaining previous amend-
ments, to bring the Union into danger :
• Resolved, That it is the opinion of this committee
that the said Constitution be ratified.
6 But, in order to relieve the apprehensions of those
who may be solicitous for amendments, -
6. Resolved, That it is the opinion of this committee
that whatsoever amendments may be deemed necessary,
be recommended to the consideration of congress, which
shall first assemble under the said Constitution, to be
acted upon according to the mode prescribed in the fifth
article thereof." 1
After these resolutions were adopted, and some
other preliminary steps taken, Mr. Wythe reported
the following, among other arnendments, to be
recommended to the congress that should first
assemble under the Constitution.
51. That there are certain natural rights of which
1 Elliot's Reports,.vol..ii. p. 473..
22*
258
VIRGINIA CONVENTION.
men, when they form a certain compact, cannot deprive
or divest their posterity, among which are the enjoyment
of life and liberty, with the means of acquiring, possess-
ing, and protecting property, and pursuing and obtaining
happiness and safety."
If a people cannot, by any legislative enact-
ments, deprive their own posterity of the foregoing
blessings, much less can they deprive those who
are not connected, and have no connection with
them, of their life, liberty, &c. If they cannot
deprive their own sons of their liberty, much less
can they deprive the sons of another people of
theirs. Is it not so ? Has not a father, if he pos-
sesses any right at all, a greater right over the
liberty of his own sons than over the sons of his
neighbor ?
"3. That government ought to be instituted for the
common benefit, protection, and security of the people,
and that the doctrine of non-resistance against arbitrary
power and oppression is absurd, slavish, and destructive
to the good and happiness of mankind." 2 "
69. That no freeman ought to be taken, imprisoned,
or disseized, of his freehold, liberties, privileges, fran-
chises, or outlawed, or exiled, or in any manner de-
stroyed or deprived of his life, liberty, or property, but
by the law of the land.
56. 10. That every freeman restrained of his liberty is
entitled to a remedy.; - to inquire into the lawfulness
thereof, and to remove the same, if unlawful; and that
such remedy ought not to be denied or delayed.
66.11. That, in controversies respecting property, and
in suits between man and man, the ancient trial by
"Elliot's Reports, vol. ii. p. 483.
2 Idem, vol. ii. p. 483.
VIRGINIA CONVENTION.
259
jury is one of the greatest securities to the rights of
the people, and ought to remain sacred and inviolable.'
“12. That every freeman ought to find a certain
remedy, by a recourse to the laws, for all injuries and
wrongs he may receive in his person, property, and
character. He ought to obtain right and justice freely,
without sale, completely and without denial, promptly
and without delay; that all establishments and regula-
lations contravening those rights are oppressive and un-
just:”.
“14. That every freeman has a right to be secure
from all unreasonable searches and seizures of his per-
son, his papers, and property: all warrants, therefore,
to search suspected places, or seize any freeman, his
papers, or property, without information upon oath, (or
affirmation of a person religiously scrupulous of taking
an oath of legal and sufficient cause,) are grievous and
oppressive; and all general warrants to search suspected
places, without specially naming and describing the place
or person, are dangerous, and ought not to be granted.
“ 15. That the people have a right peaceably to as-.
semble together to consult for the common good, or to.
instruct their representatives; and that every freeman
1 We have introduced a number of observations on the subject of
the trial by jury, because it has been a subject, in these days, much
commented on, and because many have been disposed to look upon
it in somewhat an unfavorable light, as it militated against what
was considered for the best interest of the community. But we.
fear we have been so long accustomed to a free state of society,
and have comparatively: seen so little of arbitrary governments, we
have almost forgotten how vitally necessary it is for the security of
the rights of the individual, and the liberty of his person. We
trast, therefore, however it may sometimes be perverled, we shall
yet hold it as the apple of the eye, and no more have it given up,
if it could be under any of our State constitutions, than we would
have this member plucked from its socket because it sometimes
gives pain.
260
VIRGINIA CONVENTION...
i
has a right to petition, or to apply to the legislature for
the redress of grievances.
"“ 16. That the people have a right of freedom of
speech, and of writing and publishing their sentiments ;
that the freedom of the press is one of the greatest bul-
warks of liberty, and ought not to be violated.”
There were in all twenty amendments pro-
posed, but the above have the most direct bearing
on the question. They all, however, like these,
go towards establishing the freedom of the citizen,
at least the free one.
The main question of adopting the Constitution
was resolved in the affirmative by 89 yeas, 79
nays. Patrick Henry, William Grayson, James
Munroe, George Mason, were among the nays.
A number of these amendments proposed by
Virginia were, for the most part, adopted by the
people of the United States, and have become a
part of the Constitution. . We can, perhaps, tell
what meaning was meant to be put on these
amendments by the word or words stricken out,
as sometimes a single word will give a peculiar
significance to a sentence, and entirely alter its
import. And is there not an important word in
the above resolutions which would give a peculiar
meaning to them ? and is not that word the word
freeman ? If that remained in, the framers of the
Constitution may have been said to have meant
slavery should be continued ; but, as we shall see,
they struck it out, and substituted the word per-
son, without any qualification ; consequently, every
· Elliot's Reports, vol. ii. p. 234.
- 261
person, be he black, white, or gray, is, by our
Constitution, under its protection; "he has a right
to be secure from all unreasonable searches and
seizures," &c. If so, we would ask, what is more
unreasonable than to seize and make a slave of a
man who has committed no crime against the
individual who seizes him, or against society. at
large? We know of nothing.
What say the people of Virginia to the right of
publishing one's sentiments now ? let her votes in
congress on the subject of petitions answer. Does
she in this thing maintain her ancient honorable
standing, even in words, where the free citizen is
concerned? We are under the painful necessity
of saying she does not,
CHAPTER X.
LXTRACTS FROM THE PROCEEDINGS IN THE CON-
VENTION OF NORTH CAROLINA.
The convention in this State spent much time
in the discussion of the power of impeachments.
They appeared to think it was a matter of consid-
erable importance; and the report of their discus-
sion is very full. But, as this subject contains
nothing that immediately applies to the subject
under consideration, it may be proper only to allude
to it, as a matter of information to those who may
wish to know the fact. It may also be well to
say there were a number in this convention who
wanted to act on the proposed Constitution as a
whole; and, as far as we could judge from the
debates, it was among those who wanted to reject
it because it did not favor their views on the sub-
ject of slavery; though the reasons why they op-
posed are not clearly stated. But their counsels
did not prevail, and the advantages and disadvan-
tages of the proposed form of government were
generally discussed.
The following quotations comprise nearly all
that was reported to have been said on the several
subjects under discussion, together with such other
observations as were thought to throw light on the
several points at issue.
.
NORTH CAROLINA CONVENTION. ,
263
Mr. Davie, 'in answer to Mr. Goudy, who said
he did not wish to be represented with negroes,"
especially if it increased his burdens, said, -
6 The gentleman does not wish to be represented with
negroes. This, sir, is an unhappy species of population ;
but we cannot at present alter their situation. The East-
ern States had great jealousies on this subject. They
insisted that their cows and horses were equally entitled
to representation ; that the one was property as well as
the other. It became our duty, on the other hand, to
acquire as much weight as possible in the legislature of
the Union; and, as the Northern States were more pop-
ulous in whites, this only could be done by insisting that
a certain proportion of our slaves should make a part of
the computed population ; but, on consideration, it was
found impracticable to determine the comparative value
of lands and other property, in so extensive a territory,
with any degree of accuracy; and population alone was
adopted as the only practicable rule or criterion of rep-
resentation. It was urged by the deputies of the Eastern
States, that a representation of two fifths would be of
little utility, and that their entire representation would be
unequal and burdensome; that, in a time of war, slaves
rendered a country more vulnerable, whilst its defence
devolved upon its free inhabitants. On the other hand,
we insisted that, in a time of peace, they contributed, by
their labor, to the general wealth, as well as other mem-
bers of the community ; that, as rational beings, they ·
have a right to representation, and, in some instances,
might be highly useful in war. On these principles, the
Eastern States gave the matter up, and consented to the
regulation as it has been read. I hope these reasons will
appear, satisfactory. It is the same rule or principle
which was proposed some years ago by congress, and
264
NORTH CAROLINA CONVENTION.
assented to by twelve of the States. It may wound the
delicacy of the gentleman from Guildford, [Mr. Goudy,]
but I hope he will endeavor to accommodate his feelings
to the interest and circumstances of his country."!
Mark the language of this gentleman; that it
was on the principle the South acknowledged the
negroes were rational beings that the North con-
sented to let them be represented, and not before ;
and just so far as they were taxed, just so far were
they allowed to vote : three fifths were to have
votes, and three fifths were to be taxed; or, what
amounted to the same thing in practice, each man
was called three fifths of a man. But is this “ra-
tional being” represented in our national councils ?
Is he who, they have allowed, in a time of peace,
contributed to the general wealth, cared for? is his .
interest looked after ? Is he who has been toiling
the fifty-three years since this Constitution has
been adopted, to add to our wealth, had any one
from the South come forward, before the councils
of our nation, to ask for him a little respite from
his toils, or to consider him, in the least degree,
for all the labor he has performed? Can we look
for no gratitude for such a length of service, or "is
there no flesh in man's obdurate heart," and does
he not yet "feel for man?" Are the words of the
poet ever to remain true? and are governments and
courts of law, like corporations, ever to be without
souls? Is man never to receive justice from their
hands, when avarice bids them nay? We wait,
with anxious solicitude, for the reply.
Elliot's Reports, vol. iii. p. 41.
NORTH CAROLINA CONVENTION
265
I
UL.
Mr. Spencer, in speaking of taxation, said, -
“I am sensible that laws operating on individuals can-
not be carried on against States, because, if they do not
comply with the general laws of the Union, there is no
way. to compel a compliance but by force.” 1
Here is an instance where Mr. Spencer says, di-
rectly, that congress had to do with the individual
instead of the States ; in fact, our revenue laws
bear directly upon the people, and the States, as
States, have nothing to do with them : the power
of taxation for the support of the general govern-
ment is wholly confided to the people, and not to
the States; and, consequently, as was intimated in
many of the speeches made on the occasion, it was
supposed that congress would lay such a tax on
the slave as would compel emancipation; and, the
only way they thought they could escape was, the
taxes would be in proportion to the representatives,
and therefore could not be so increased as to com-
pel emancipation. We, on the whole, incline to
think it would have done it, if direct taxes had
been laid for the support of the general government
as was at first proposed.
.66 Gov. Johnston observed that a member says that it
1 Elliot's Reports, vol. iji. p. 78.
? In this same speech, speaking of paper money, for the moment
it gave great relief. "It assisted in prosecuting a bloody war. It
is destructive in the end; it was struck, in the last instance, for the
purpose of paying the officers and soldiers. The motive was
laudable. I then thought, and still do, that these gentlemen (speak-
ing of the officers of the army] might have had more advantage by
not receiving that kind of payment. It would have been better for
them, and for the country, had it not been emitted. We have in- .
23
266
NORTH CAROLINA CONVENTION.
is improper to take the power of taxation out of the hands
of the people. I deny it is taken out of their hands by
volved ourselves in a debt of £200,000. We have not, with this
sum, fairly and honestly paid £50,000. Was this right ? But, say
they, there was no circulating medium. This want was necessary
to be supplied. It is a doubt with me whether the circulating me-
dium be increased by an emission of paper currency. Before the
emission of paper money there was a great deal of hard money
with us. For thirty years past I have not seen so much money in
circulation as we had at the emission of paper money in 1783.
That medium was increasing daily. People from abroad bring
specie; for, thank God, our country -produces articles which are
every where in demand. There is more specie in the country than
is generally imagined, but the proprietors keep it locked up. No
man will part with his specie. It lies in his chest. It is asked,
why not lend it out? The answer is obvious: that, should he once
let it out of his power, he never could recover the whole of it. If
he bring a suit, he will obtain a verdict for one half of it. This is
the reason of our poverty. The scarcity of money must, in some
degree, be owing to this, and the specie that is now in this country
might as well be in any other part of the world. If our trade was
once on a respectable footing, we should find means of paying that
enormous debt." *
Mr. Maclane said, “We had more money in gold and silver in
circulation than we have nominal money now." "It is well known
that in this country gold and silver vanish when paper money is
made." +
In introducing these remarks, we have done it on account of the
present agitation of the question respecting paper money, to make
our readers acquainted, if they were not before, what was said on
the subject on its first introduction in this country. , One cannot but
smile at the enormous debt then contracted, when we have now
State debts of about two hundred millions; and, if report says true,
the States in many cases have involved themselves without having
but very little to show for their indebtedness.
We have also introduced them, in part, from the fear lest, in the
great anxiety to obtain a national bank, any compromise should be
made with the South to grant her a standing army, if she will con-
sent to the establishment of such a moneyed instilution.
* Elliot's Reports, vol. iii. p. 167.
| Idem, p. 89.
NORTH CAROLINA CONVENTION.
267
this system. Their immediate representatives lay these
taxes.” 1
We would wish our readers to take notice of the -
remarks of Mr. Iredell, of North Carolina, and those
of. Mr. Spraight, and McDowall: in these we
probably have the sentiments of most of the
American people. How different at the present
day, when our republican presidents, representa-
tives, and reviewers, would endeavor to make us
believe that all America had made it a point to
guarantee this abomination to the South, when,
according to truth, it was directly the other way!
Nothing but the absolute necessity, according to this
account of the sayings and doings of the people of
even North Carolina, of forming a union, that the
foreign slave-trade was permitted to continue for
twenty years, and that against the will and wishes
of all portions of the Union, saving South Carolina
and Georgia. And, without doubt, it is to those
two States that we, at the present day, are indebted
for the continuance of the slave system ; and these
observations show how much we have to fear if
it is much longer continued, and how fast it is
gaining an ascendency over, and influencing the
mind of this people. When we look back and see
how openly slavery was denounced throughout the
the original States, and how heartfelt was the grief
manifested that it should be tolerated even for a
moment, and that among slaveholders themselves,
we are astonished such a change has already
taken place.
O
| Elliot's Reports, vol. iii. p. 88.
268
NORTH CAROLINA CONVENTION.
Now men from all parts of the country are lift-
ing up their voices in its favor ; they would make
the discussing of the subject actionable at com-
mon law, a' fit subject to cause an open war, if the
different States were independent nations, and an
almost universal sanctioning of lynchings, insults,
and contimely, if even discussions or conversation
on the subject are to be allowed. If such a radi-
cal change as this has taken place when but about
fifty years have passed over our nation, what must
be expected should it be continued an hundred
years longer, and that, if any one should then
speak in derogation of what has most strangely
been called the key-stone of the arch of our repub-
lic, he should be "hung without benefit of cler-
gy?" Is there no danger it will be so ?' We
now'appeal to those who think there is no danger
to be apprehended to our republican institutions,
to our liberty, if this institution remains un-
touched. If it is not abolished by the strong arm
of the law, or by our courts, or by the voluntary
good sense or a sense of justice in every indi-
vidual, may not the gag that has been so freely
applied in congress eventually be made to apply
to every person throughout our country? If
there is danger that such may be the result, we
hope the lullaby song of doctors of divinity, or
a perverted priesthood, will not cause this com-
munity to slumber. The watch word of liberty is,
be vigilant, be brave. Give neither "sleep to the
eyes, nor slumber to the eyelids,” till each one has
done something to satisfy those around him that
1
NORTH CAROLINA CONVENTION.
269
they will not admit this enemy of peace to their
embrace ; that they will esteem it a scorpion ; a
viper, whose fangs are deadly, and whose breath
is pollution. We hope and trust, as we have be-
fore remarked, that there are some of the descend-
ants of such men, who, when the battle becomes
fiercer, and their aid is required, will not be
backward in showing their true colors. We know
there are some, and we hope their numbers will
be much greater than we can even anticipate, who
have not bowed down to this golden calf, and
who have not been deceived by the false show
that it exhibits to a superficial observer. But,
while we would rejoice at the stand made by
some individuals at the South, let us not forget
thạt, while they expressed themselves horrified at
slavery in the abstract, yet they hugged with ex-
treme pertinacity to the slaves they then held.
How to get rid of them, how to lose their proper-
ty, which they thought they held in slaves, they
knew not; or shall we be less charitable, and set
it down to their perversity, and say that all the arts
and contrivances of which they were capable were
put into requisition to secure to themselves the
labor of the slave, while they would exhibit to
the world. a face on which no spot or wrinkle:
could be found?
South Carolina and Georgia wanted laborers :
the white man could not work in their fields; and
the people of that day could think of. no way, by
kind treatment, to induce the colored man to come
to our shores ; and, forsooth, they must permit his
23*
270
NORTH CAROLINA CONVENTION.
1
forcible introduction, and by all the arts in their
power attempt to cover up their meaning, so that
it would require deep study to know what was
meant by their acts. When men attempt to do
wrong, how hard it is to be plain of speech! But
was this so ?. It might have been with some ; no
doubt it was; and, by their persevering endeavors,
they undoubtedly made the Constitution speak a
different language than it would have done had
the majority been able to have spoken as they
wished. The subject in the Confederacy was
manifestly out of the control of the people gener-
ally; in the Constitution, it was brought within
the control of the people of the United States;
and, being so, it was made a subject of congratul-
lation, and they rejoiced they could point to a time
when they thought slavery would be at an end ;
but, in the mean time, they seemed to be willing
nothing should be done by the general govern-
ment to disturb the relation of master and slave.
c. They looked to the abrogation of the African
slave-trade to put an end to slavery, as is shown
by the observations of these gentlemen. But
when we find the stopping of the foreign slave-
trade has had no influence to destroy this system,
but that it is more firrnly fixed upon the country,
what should be the course we should now pursue,
if we mean to make this land a land of liberty ?
Evidently to take such steps, consistently with
right, as will put a stop to its longer continuance ;
and the powers of the government, if the States
will not do it when asked, should be put to the
N
TA
1
NORTH CAROLINA CONVENTION.
271
1
utmost stretch effectively to secure to every individ-
ual his individual rights. This and this only can
heal the wounds, so far as our government is con-
cerned, that have been inflicted upon our land,
and restore the Constitution to its true and legiti-
mate meaning, and harmony to the different por-
tions of our country.
But Mr. Iredell says expressly that the power of
congress does not extend to the freeing the slaves
then in the country; and perhaps there was then no
specific power by which it could be done, except-
ing under the phrase "the general welfare;" but it
must be remembered that amendments were made
to that Constitution, which, if the language was
not sufficiently plain in the original, the amend-
ments made to it has effectually, and in as distinct
language as could be used in such an instrument,
secured to every individual his rights. The reason
for bringing forward these amendments, or at least
some of them, was well understood; and it was.
well known they meant to apply to the slave, if not.
by one portion of the country it was by, the other ;
and all the amendments proposed were made to
conforın, as Mr. Madison expressed it, to one prin-
ciple, that was of liberty : it would not. answer to.
have two opposing principles " in the same in-
strument.
It is to be remarked, how singular is the idea:
advanced by Mr. Galloway, and which we often
hear expressed at this day: “If we set our slaves.
free, what shall we do with them?" and "we.
cannot live with them, if free ;" as if the slave
.
IS
11
272
NORTH CAROLINA CONVENTION.
II
could not take care of himself, and that there
would be more danger and degradation in residing
at the South among free colored people than
among slaves. It seems to us strange how such
notions - for this Mr. Galloway seems truly to
entertain them — could ever enter the human
mind. A person can live in contact, and in daily
communication, with individuals, if they happen.
to hold certain relations, without one word of com-
plaint ; -but, if they happen to hold certain other
relations, then they are horrified at the very sight
of them. Can this be sincere ? We can conceivė
of nothing that can produce this effect, except that
it is thought, by the persons who entertain these
sentiments, the negro is a brute, or a savage, and
requires the whip to keep him orderly. The gen-
eral fact, however, that they are men, that they
are rational beings, should be enough to refute
this charge. Yet we need not depend upon this
general considerations, but can refer directly to
the experiment in the British West India Islands,
as demonstrable proof that the colored man is as
teachable, as ready to live in civilized society, as
any other race on the globe; and consequently,
if persons will look into the facts of the case, these
fears, if they have been or are now honestly enter-
tained, may no longer be.so.
· The whole of the observations that follow are
worthy of special note, particularly as they come
from North Carolina. .
4 Mr. Fredell said, I believe the passion for liberty is
stronger in America than in any other country in the
NORTH CAROLINA CONVENTION.
273
world : here every man is strongly impressed with its
importance, and every breast glows with ardor for the
preservation of it. · Every jealousy, not incompatible
with the indispensable principles of government, is to be
commended; but these principles must at all events be
observed."'?
Mr. Spraight, in answer to a question put, —
why was the restriction made in the first clause of
the 9th section, -- said, -
“There was a contest between the Northern and
Southern States; that the Southern States, whose prin-
cipal support depended on the labor of slaves, would not
consent to the desire of the Northern States to exclude.
the importation of slaves absolutely; that South Carolina
and Georgia insisted on this clause, as they were now in
the want of hands to cultivate their lands; that, in the
course of twenty years, they would be fully supplied ;
that the trade would be abolished then; and that, in the
mean time, some tax or duty might be laid on.” 2
“Mr. McDowall replied, it was just such an explana-
tion as he expected, and by no means satisfactory to
him; and that he looked upon it as a very objectionable
part of the system." ;
Mr. Iredell rose to express sentiments similar to those
of the gentleman from Cravan. “For my part, were it
practicable to put an end to the importation of slaves .
immediately, it would give me the greatest pleasure ; for
it is certainly a trade utterly inconsistent with the rights
of humanity, and under which great cruelties have been
exercised. When the entire abolition of slavery takes
place, it will be an event that must be pleasing to every
1 Elliot's Reports, vol. iii. p. 93.
* Idem, vol. iii. p. 97.
2 Idem, vol. iii. p. 96.
NORTH CAROLINA CONVENTION.
generous mind, and every friend of human nature ; but
we often wish for things which are not attainable. It
was the wish of a great majority of the convention to
put an end to the trade immediately ; but the States of
sider, then, what would be the difference between our
present situation in this respect, if we do not agree to the
Constitution, and what it will be if we do agree to it. If
we do not agree to it, do we remedy the evil? No, sir,
· we do not. For, if the Constitution be not adopted, it
will be in the power of every State to continue it forever.
They may or they may not abolish it, at their discretion..
But, if we adopt the Constitution, the trade must cease
after twenty years, if congress declare so, whether par-
ticular States please so or not: surely, then, we gain by
it. This was the utmost that could be obtained. I heart-
ily wish more could have been done. But, as it is, this
government is nobly distinguished above others by that
very provision. Where is there another country where
such a restriction prevails ? We therefore, sir, set an
example of humanity, by providing for the abolition of
this-inhuman traffic, though at a distant period.' I hope,
therefore, this part of the Constitution will not be con-
demned because it has not stipulated for what was im-
practicable to obtain."
Mr. Spraight further explained the clause :
“ That the limitation of this trade for the term of
twenty years was a compromise between the Eastern
and Southern States. South Carolina and Georgia
wished to extend the time. The Eastern States insisted
on the entire abolition of the trade. That the State of
North Carolina had not passed a law prohibiting the
Elliot's Reports, vol. iii. p. 97.
NORTH CAROLINA CONVENTION.
275
importation of slaves, and therefore its delegates in the
convention did not think themselves authorized to con-
tend for an immediate prohibition of it.”
“Mr. Iredell added to what he had said before, that the
States of South Carolina and Georgia had lost a great
many slaves during the war, and that they wished to
supply the loss." 2 .
Mr., Galloway said " The explanation given to this
clause does not satisfy my mind. I wish to see this
ABOMINABLE TRADE put an end to. But, in case it be
thought proper to continue this abominable traffic for
twenty years, yet I do not wish to see the tax on the
importation extended to all persons whatsoever.. Our
situation is different from the people to the North. We
want citizens; they do not. Instead of laying a tax, we
ought to give a bounty, to encourage foreigners to come
among us. With respect to the abolition of slavery, it
requires the utmost consideration. The property of the
Southern States consists principally in slaves. If they
mean to do away with slavery, this property will be
destroyed. I apprehend it means to bring forward
manumission. If we must manumit our slaves, what
country shall we send them to ? It is impossible for us
to be happy if, after manumission, they are to stay
among us." 3
.66 Mr. Iredell said the worthy gentleman has misunder-
stood this clause, which runs in the following words:
· Migration or importation of such persons as any of the
States now existing shall think proper to admit, shall not
be prohibited by the congress prior to the year 1808, but
a tax, or duty, may be imposed on such importation, not
exceeding ten dollars for each person. Now, sir, ob-
A
Elliot's Reports, vol. iii. p. 97.
3 Idem, vol. iii, p. 98.
2 Idem, vol. iii. p. 98.
276
NORTH CAROLINA CONVENTION.
serve that the Eastern States, who long ago. have abol-
ished slavery, did not approve of the expression slaves;
they therefore used another that answered the same pur-
pose. The committee will observe the distinction be-
tween the two words migration and importation. The
first part of the clause will extend to people who come
into the country as free people, or are brought as slaves ;
but the last part extends to slaves only. The word
migration refers to free persons, but the word importa-
tion refers to slaves, because free people cannot be said
to be imported. The tax, therefore, is only to be laid.
on slaves who are imported, and not on free persons
who migrate. I further beg leave to say the person is
mistaken in another thing. He seems to say that this
extends to the abolition of slavery. Is there any thing
in this Constitution which says that congress shall have
it in their power to abolish the slavery of those slaves
who are now in the country? Is it not the plain mean-
ing of it, that after twenty years they may prevent the
importation of slaves ? It does not extend to those now
in the country. There is another circumstance to be
observed : there is no authority vested in congress to re-
strain the States, in the interval of twenty years, from
doing what they please. If they wish to inhibit such
importation, they may do so. Our next assembly may
put an entire end to the importation of slaves."' !
The rest of the 9th section, the reporter re- .
marks, wàs read without any observations.
6 Mr. Spencer said, I wish to have a bill of rights to
secure those inalienable rights which are called by some
respectable writers the residuum of human rights, which
are never to be given up. At the same time that it
1 Elliot's Reports, vol. iii. p. 98.
NORTH CAROLINA CONVENTION.
277
would give security to individuals it would add to the
general strength."
He objected, in this speech, to the powers of
the Supreme Court, and to that clause which gives
this court jurisdiction in cases of controversies
between individuals of different States. On this
subject he said, -
c. Nothing can be more oppressive than the cognizance
with respect to controversies between citizens of different
States. In all cases of appeal, those persons who are
able to pay had better pay down in the first instance,
though it be unjust, than to be at such a dreadful expense
by going such a distance to the Supreme Federal Court."
He observed, some of the other “States had proposed
amendments to this clause, and that he thought, by admit-
ting this clause, it would render the country entirely
unhappy"-"inconsistent to the happiness of the peo.
ple to admit these two clauses. The State courts are
sufficient to decide the common 'controversies of the
people, without distressing them by being carried to such
far distant tribunals."
Mr. Spraight said, in answer, there was no disa-
greement in the convention respecting these two
clauses.: he said the convention wished to separate
as much as possible the judiciaries of the States
and of the general government, and "consult the .
ease and convenience of the people. The gentle-
man objects to the cognizance of all cases in law
and equity arising under the Constitution and the
laws of the United States. This objection is very
astonishing. When any government is established,
•
2 Idem, vol. iii. p. 127.
Elliot's Reports, vol. iii. p. 127.
24
278
NORTH CAROLINA, CONVENTION.
it ought to have power to enforce its laws, or else
it might as well have no power: what but that is
the use of a judiciary? The gentleman, from his
profession, must know that no government can
exist without a judiciary to enforce its laws, by
distinguishing the disobedient from the rest of the
people, and imposing sanctions for securing the
execution of the laws." 1
:.'
Mr. McDowall, speaking of the importance of
having a jury trial secured to the people, and find-
ing in civil cases it was not secured in the last
resort, though in criminal cases it was, supposed a
case of a man's going from Georgia to Philadel-
phia, there to have a suit tried, and then asked,
“ And can it be justly determined without the benefit
of trial by jury? These are things which have justly
alarmed the people. What made the people revolt from
Great Britain ? The trial by jury, that great safeguard
of liberty, was taken away, and a stamp duty was laid
upon them. This alarmed them, and led them to fear
greater oppressions would take place." 2
Mr. Spraight said, -
“The convention did not forget the trial by jury; the
subject took up a considerable time to investigate it. It
was impossible to make one uniform regulation for all
the States, or that would include all cases where it would
be necessary. It would be impossible for one expression
to embrace the whole. There are a number of equity
and maritime cases in some of the States, in which jury
trials are not used. Had the convention said that all
cases should be tried by a jury, equity and maritime
1 Elliot's Reports, vol. iii. p. 128.
2 Idem, vol. iii. p. 131.
NORTH CAROLINA CONVENTION.
279
cases would have been included. It was therefore left
to the legislature to say in what cases it should be used;
and, as the trial by jury is in full force in the State courts,
we have the fullest security.”!.
Mr. Tredell explained the cause of the jury trial
being left as it was; congress does not say it shall
or shall not be used; but left the subject some-
what open to be governed by usage. He also ex-
plained why there was no bill of rights to the
Constitution, and said, -
“With regard to a bill of rights, this is a notion origi-
nating in England, where no written Constitution is to be
found, and the authority of their government is derived
from the most remote antiquity: 'Magna Charta itself
is no constitution, but a solemn instrument, ascertaining
certain rights of individuals, by the legislature for the
time being, and every article of which the legislature
may at any time alter.'.... Our Constitution was dif-
ferent. Congress by it was given certain specific pow. .
ers, and what was not given was reserved to the States
or the individual : there could, therefore, be no general
expression of rights. .
" Had their constitution been fixed and certain, a
bill of rights would have been useless ; for the con-
stitution would have shown plainly the extent of that
authority which they were disputing about. · Of what
use can a bill of rights be in this Constitution, when
the people expressly declare how much power they
do give, and consequently retain all they do not? It
is a declaration of particular powers by the people
to their representatives, for particular purposes. It
may be considered as a great power of attorney, under
:
Elliot's Reports, vol. iii. p. 131.
280
NORTH CAROLINA CONVENTION.
which no power can be exercised but what is expressly
given." I
Mr. Spencer, in the quotation that follows,
thinks that congress has to do with the indi-
vidual ; he thought the Constitution ought to be
amended so as to read that all that was not given
up should be reserved to the States; then it '.
would supersede the necessity of a bill of rights ;
otherwise there ought to be one; and then went
on to say, -
- The States do not act in their political capacities,
but the government is proposed for individuals. The
very caption of the Constitution shows this to be the case.
The expression we the people of the United States ?
shows this government is intended for individuals ; there
ought, then, to be a bill of rights. I am ready to ac-
knowledge congress ought to have the power of exe-
cuting its laws. Heretofore, because all the laws of the
Confederation were binding on the States in their indi.
vidual capacities, courts had nothing to do with them ;
but now the thing is entirely different. The laws of
congress will be binding on individuals, and those things
which concern individuals will be brought properly be-
fore the courts." 2.
He then went on further to argue in favor of a
bill of rights, in opposition to Mr. Iredell, and, as
reasons, he said, -- .
“ There are certain human rights that ought not to be
given up, and which ought, in some manner, to be se-
cure. With respect to these great essential rights, no
latitude ought to be left. They are the most inestimable
Elliot's Reports, vol. iii. p. 135.
2 Ideni, vol. iii. p. 139.
NORTH CAROLINA CONVENTION.
281
gifts of the Creator, and therefore ought not to be
destroyed, but ought to be secured. They ought to be
secured to individuals in consideration of other rights
which they give up to support society.”
He also spoke of the trial by jury, and, among
other observations, said, -
“Every person who is acquainted with the nature of
liberty need not be informed of the importance of this
trial. Juries are called the bulwarks of our rights and
liberty ; and no country can be enslaved so long as those .
cases which effect their lives and property are to be
decided in a great measure by the consent of twelve
honest, disinterested men, taken from the respectable
body of yeomanry. It is highly improper that any
clause which regards the security of the trial by jury
should be in any way doubtful.”
Further on he said, -
“I ask the gentleman' what benefit would be received
in the suit by having a jury trial in the court below,
when the verdict is set aside in the Supreme Court." !
Mr. Davie spoke in answer to Mr. Spencer,
and in favor of the Constitution as reported, and
said, --
“That the powers of the judiciary should extend as
far as legislation; that there was but two ways for gov-
ernment to carry its laws into effect, - one by the sword ,
the other by the judiciary ; that the latter was to be pre-
ferred ;” and, in conclusion, said, -" It is necessary
that the Constitution should be carried into effect, that
the laws should be executed, justice equally done to all
in the community, and treaties observed. These ends
· Elliol's Reports, vol. iii. p 140.
24*
282
NORTH CAROLINA CONVENTION.
can only be accomplished by a general paramount juo-
diciary.” 1
Mr. Maclane, in answer to Mr. Spencer, said, -
6 Can any security arise from declaring we have a
right to what belongs to us? Where is the necessity
for such a declaration ? If we have this inherent, this
unalienable, this indefeasible title to those rights, if they
are not given up, are they not retained ? If congress
should make a law beyond the powers and the spirit of
the Constitution, should we not say to congress, You
have no authority to make this law. There are limits
beyond which you cannot go. You cannot exceed the
power prescribed by the Constitution. You are amepa-
ble to us for your conduct. This act is unconstitu-
tional. We will disregard it, and punish you for the at-
tempt.?" 2
Mr. Spencer answered, -
6. The gentleman last up misunderstood him. He did
not object to the caption of the Constitution, but he
instanced it to show that the United States were not,
merely as States, the object of the Constitution; but that
the laws of congress were to operate on individuals,
and not upon. Slates. He then continued,-I do not mean
to contend that the laws of the general government
should not operate on individuals. I before observed
that this was necessary, as laws could not be put into
execution against Slates without the agency of the
sword; which, instead of answering the end of govern-
ment, would destroy it. I endeavored to show that, as
the government was not to operate against States, but
against individuals, the rights of individuals .ought to be
properly secured. In order to constitute this security
1. Elliot's Reports, vol. iii. p. 145.
? Ideni, vol. iii. p. 145.
NORTH CAROLINA CONVENTION.
283
it appears to me there ought to be such a clause in the
Constitution as there was in the Confederation, expressly
declaring that every power, jurisdiction, and right, which
are not given up, remains with the States. Such a
clause would render a bill of rights unnecessary. But,
as there is no such clause, I contend that there should
be a bill of rights, ascertaining and securing the great
rights of the States and people."
Observe this language. The government of the
United States was not to operate on States, but on
individuals. By this means, it avoids the clashing
which might frequently take place between a su-
perior and a subordinate government. The laws
of congress operating upon the individual, and not
upon the State, there is no danger of opposition,
saving when a State undertakes to protect its
people in their opposition to the laws of the gene-
ral government, as was attempted to be done by
South Carolina, in her nullification acts.
Congress, as is here conceded, has power over
the individual; and, if so, we will ask, what
were the rights contended for that he should re-
tain ? what were "the rights of the individual,"
which sought to be property secured ?" We
know of none, saving those inalienable rights
spoken of in the Declaration of Independence, and
which Mr. Spencer thought ought to be secured
by a bill of rights, or, what he thought would
amount to the same thing, "a clause in the Con-
stitution, as there was in the Confederation, ex-
pressly declaring every power, jurisdiction, and
* Elliot's Reports, vol. iii. p. 147.
284
NORTH CAROLINA CONVENTION.
.
right, which are not given up, remains with the
States ; " or, as he in another place adds, that, as
the security of these rights in the Confederation
remained with the States under the Constitution,
they would remain with the people. As the 10th
article of the amendments embraces the idea as
expressed by Mr. Spencer, we do not perceive how
the conclusion can be avoided, that these inalien-
able rights, of which the Declaration of Independ-
ence speaks, are fairly and properly secured to the
people. We have, therefore, only to suppose the
negro a man, and one of the people, — and in what
other light can he be considered ? --and the con-
clusion is inevitable: he is a freeman, and the
Constitution guarantees to him his freedom. :
This 10th article of the amendments to the
Constitution has a great deal of meaning to it, —
more, we suspect, than usually meets the eye. It
was one of those amendments brought forward in
- the Massachusetts convention, to answer the ob-
jections made by different members of that con-
vention, — that, in adoption of the Constitution,
that they might not bemade to consent to bar
ter away the rights of the State or the individual
rights of any man. Such being the fact, are not
all laws that have been made by congress or the
States — if any have been made having in view
the personal subjection of one man to another,
without the consent of that other — against not
only the spirit, but the very letter, of the Con-
stitution ? A higher tribunal than oursself must
decide.
NORTH CAROLINA CONVENTION.
285
Mr. Iredell observed, “ The honorable gentleman said
it was very extraordinary that the convention should not
have taken the trouble to make an addition of five or six
lines, to secure the trial by jury in civil cases. . Sir, if,
by the addition, not only of five or six lines, but ºf five
or six hundred lines, this invaluable object could have
been secured, I should have thought the convention
criminal in omitting it; and, instead of meriting the
thanks of their country, as I think they now do, they
might justly have met with resentment and indignation.
I am persuaded the omission arose from the real difficul-
ties of the case."
He thought the gentleman could not point out
how it could have been done under the circum-
stances. Different States had different laws.
“Union was absolutely necessary. Every thing
could be agreed upon, except the regulation of
trial by jury in civil cases. They were all anx-
ious to establish it on the best footing, but found
they could fix upon no permanent rule that was
not liable to great objections and difficulties. As
the.convention could not agree among themselves,
they concluded the States would not.” They
therefore left the subject for legislation, supposing
it would be safe in the hands of the representatives
· of the people. But they had secured a trial by
jury in criminal cases ; this being so, is it pos-
sible a man can be punished in the United States
without crime? and, if he commits a crime, must
he not have a jury trial before punishment? Those
who make an assertion in the affirmative are bound
Elliot's Reports, vol. iii. p. 148.
286
NORTH CAROLINA CONVENTION.
to show that, under this article in the Constitution,
it can be done.
Mr. Bloodworth observed, " The answer of the gentle-
man did not convince him. He saw no reason why they
did not secure a jury trial in civil cases as well as in
&
States did not produce in his mind any satisfactory rea-
sons; that there were as different laws in one case as in
the other.” “If it has been possible to secure it in
criminal cases, notwithstanding the diversity concerning
it, why has it not been possible to secure it in civil cases ?
I wish this to be cleared up. By its not being provided
for, it is expressly provided against. I still see a neces-
sity for a bill of rights.?" }
Mr. Iredell answered these objections by saying
that, in different States, “admiralty and equity
cases " 2 were decided without jury, and it was
thought these States would not agree to alter their
course; that the great means for tyranny was by
criminal prosecutions, and therefore congress had
guarded this point, and he thought there could be
no danger.
Mr. Iredell, speaking of the last clause of the
4th section, said, -
“He begged leave to explain this clause. In some of
the Northern States, they had emancipated their slaves. ,
If any of our slaves go there, and remain there a certain
time, they would, by the present laws, be entitled to their
freedom, so that their masters could not get them again.
This would be extremely prejudicial to the inhabitants of
the Southern States; and, to prevent it, this clause is in-
NORTH CAROLINA CONVENTION.
287
serted in the Constitution. Though the word slave is not
mentioned, this is the meaning of it. The northern dele-
gates, owing to their particular scruples upon the subject
of slavery, did not choose the word slave to be men-
tioned.”
It is to be remarked here, although this clause
is so curiously worded, no further remarks were
made by any gentleman in this convention : the
whole article, saving these few observations by
Mr. Iredell, were passed over (so says the reporter)
without any other comments.
It will be observed, by the comments of the
same gentleman, it was South Carolina and Georgia
alone that prevented the slave-trade from being
totally abolished at the time of the adoption of the
Constitution. Not one in the convention of North
Carolina seem to have said one word in favor of
slavery or the trade; an ominous silence was pre-
served.
It was also supposed by Mr. Iredell the time had
not arrived when a discussion could be had with-
out too much irritation. Has greater "coolness"
settled on the American people since that time, in
· regard to this subject? We think not; but, on
the contrary, the difficulties that surround it in-
creases with our increase, and strengthens with
our strength. So far from being any more pre-
pared for relinquishing our hold on the slave, we
are going backward; a portion of our people are
less inclined than ever to give up their claim.
Can we, however, afford to wait any longer be-.'
· Elliol's Reports, vol. iii. p. 157.
288
NORTH CAROLINA CONVENTION.
UMT
ILI
fore something should be done ? Our own opinion
is, the American people must settle the question
now, whether they will make slavery one of the -
settled institutions of the land, and alter all their
ideas as to the beneficial effects of slavery, and now
determine to call it a good, and have it extended
throughout the country; so that our laborious
farmers, our mechanics, and the persons who work
in our factories must consent not only to be called
slaves, but be so in fact, or else these persons must
arouse themselves from their stupor, and stoutly
determine no slavery shall exist at the South.
There is no alternative. One or the other must
be done. A general consent, on the part of the
working classes, to become slaves, or a general
determination on their párt to expel the accursed
system from the land. It should be well for all
parties to understand though this should make no
difference - slavery in the United States is not
now confined to the colored population, although it
may be confined to the descendants, in part, of
the colored race; but slavery itself is not confined
to the black skin, and the question now is, whether
slavery shall be extended over the North as well
as over the South? Will the American people
answer this question in the affirmative ? for this
truly is now the question. Let it be determined
that slavery is a blessing, and to be continued in
any part of the country, and there is no reason it
should not be, universally diffused. Why not ex-
tend the blessing? why not bring it to the North,
if it really be a blessing ?
NORTH CAROLINA CONVENTION.
289
Mr. Iredell, speaking of the power to make
amendments to the Constitution, alluded to the
fact that congress could not break up the slave-
trade till 1808, and said, —
“The subject of this article was regulated with great
difficulty, and by a spirit of concession, which it would
not be prudent to disturb for a good many years. In
twenty years there will probably be a great alteration,
. and then the subject may be considered with less difficul-
ty and greater .coolness. In the mean time the compro-
mise was upon the best footing that could be obtained.
A compromise likewise took place in regard to the
importation of slaves. It is probable all the members
reprobated this inhuman traffic, but those of South Caro-
lina and Georgia would not consent to an immediate
prohibition of it; one reason of which was, that during
the last war they lost a vast number of negroes, which
loss they wish to supply. In the mean time it is left to
the States to admit or prohibit the importation, and
congress may impose a limited duty upon it." !
Mr. Lenoir, speaking upon the general subject
of adopting the Constitution, said, -
“I think it not proper for our adoption, as I consider
it endangers our liberties." 2
“If there were any security for the liberty of the
people, I would, for my own part, agree to it. But, in
this case, as millions yet unborn are concerned, and
deeply interested in our decision, I would have the most
positive and pointed security." 3
In answer to the objection urged by Mr. Lenoir,
2 Idem, vol. iii. p. 177.
Elliot's Reports, vol. iii. p. 158.
3 Idem, vol. iii. p. 181.
. 25
NORTH CAROLINA CONVENTION.
.
Mr. Spraight, who was a member of the conven-
tion that proposed the Constitution, said, -
. “I am, for my part, conscious of having had nothing
in view but the liberty and happiness of my country, and
I believe every member of that convention was actu-
ated by motives equally sincere and patriotic.” 1.
Mr. Iredell said, in speaking of the object of
government, -
“The great principle is, the safety of the people is the
supreme law. Government was originally instituted for
their welfare, and, whatever may be its forms, this
rought to be its object. This is the fundamental princi-
ple on which our government was founded. In other
countries they suppose an original compact, and infer
that, if the sovereign violates his part of it, the people
have a right to resist.” 2
On the conclusion of the discussion in the com-
mittee of the whole, they reported the following
resolution, namely :
“ Resolved, That a declaration of rights, asserting and
securing the great principles of civil and religious liberty,
and the inalienable rights of the people, together with
amendments to the most exceptionable and ambiguous
parts of the said Constitution of government, ought to be
laid before congress and the convention of the States that
shall or may be called for the purpose of amending the
said Constitution, for their consideratỉon, previous to the
ratification of the Constitution aforesaid, on the part of
the State of North Carolina.” 3
The amendments which this State proposed
1 Elliot's Reports, vol. iii. p. 182.
3 Idem, vol. iii. p. 210.
2 Idem, vol. iii. p. 200.
NORTH CAROLINA CONVENTION.
291
were the same as those proposed by the State of
Virginia, the 1st, 3d, and 16th, speaking of the
natural rights of the people without any qualifica-
tions. The 9th, 10th, 11th, 12th, 14th, 15th, and
18th, introduces the term “ freeman" in the same
manner as those of Virginia. In fact, Mr. Willie
Jones said he copied them from Virginia, as, on
reference to Mr. Elliot's Reports, they will be
found to be.
They proposed twenty-six amendments to the
Constitution; all for the purpose of laying restric-
tions on the general powers of congress.
The proposed Constitution was rejected by a .
vote of 184 to 84.
The result of this vote was owing, so far as we
can judge in reading over the debates, and the ap-
parent holding back of certain members of this
convention, to the fear that slavery would be
abolished by this Constitution. They did not
want to trust it. Certain persons, though they do
not appear to have said much, yet from the little
we can glean from what there is reported, were
decidedly opposed to its adoption, and, from the
first, were ready to vote on the whole Constitution,
and go home and tell their constituents they had
put their veto on it. It was, however, discussed,
and we have given the result of that discussion,
so far as relates to the subject under consideration.
The same observations will apply here that
applied to the Virginia amendments, a part of
which were adopted by congress and ratified by
the States, a material word, however, being first
292
NORTH CAROLINA CONVENTION.
LIST
WT
struck out. We allude to the word " freeman;"
being in, it would have confined the benefits to be
conferred by the Constitution to the then freemen
of the United States and their descendants ;. but,
being stricken out, it left the benefits to be con-
ferred upon all the people without distinction,
whatever may have been their color or their race;
and, consequently, if the South, including even
Virginia and North Carolina, did mean to retain
the slaves they had in their possession, the other
portions of the country did not mean they should.
We have seen what Massachusetts said, and
these resolutions, without the word “freeman,"
being more explicit even than her own, she, with
the other States, took these amendments, after.
striking out the word “freeman," and engrafted
them on the Constitution, together with the sub-
stance of her own. Whatever, then, may have
been the Constitution, or whatever may have been
the ideas respecting slavery and its continuance,
held by the delegates who proposed it, they
amount to but little, when we find the people
would not sanction it without its being so amended
that every individual, “whether living on the
banks of the Mississippi " or "on the margin of
the Kennebec," whether he be white or black,
bond or free, should not be subjected to punish-
ment for any crime, or supposed one, without a trial
by jury; or “ be seized in his person, papers, or
effects," without a legal sanction; or that it should
be considered he consented, in the least degree,
his inalienable rights should be given up: these
NORTH CAROLINA CONVENTION.
293
were retained; they did not mean to relinquish
them. If we are correct - and we think we are
a person who is guilty of violating the Constitution
in these particulars makes himself liable, before
our courts, for violations of the principles of the
Constitution. A colored man, or a slave, cannot be
restrained in servitude without his own consent,
and the pretended authority of the master is utterly
null and void : this instrument takes from him all.
authority.
There were, however, in this convention, as our
quotations show, many who feared the Constitution
would have a bad effect on the general liberties of
the country, and, on that account, gave their vote
against it, - men who either threw out of all con-
sideration the colored man, and meant to have the
most enlarged liberty for themselves, or else were
willing he should be considered of their number;
and therefore voted against it because their rights
or his were not sufficiently guarded. The feeling
in this convention was undoubtedly strong, both
for and against slavery ; quite a number, however,
spoke as if the feeling against it was strong
throughout the State, while those in its favor said.
little, as is now their wont:
25*
CHAPTER XI.
EXTRACTS FROM THE OBSERVATIONS MADE IN THE
COŅVENTION OF PENNSYLVANIA.
U
It would appear, from Mr. Elliot’s Reports, that,
with the single exception of a few observations
made by Mr. McKean, no one is reported to have
said any thing, saving Mr. James Wilson, of
Philadelphia, a gentleman who had attended the
national convention, and who, it appears, under-
took to explain the reasons which induced that
body to adopt the Constitution, as recommended ;
and, after answering the various questions and ob-
jections which, by his answers, are supposed must
have been made, this convention adopted the Con-
stitution without any amendments being proposed
for after consideration.
Mr. Wilson began by saying,
,“ As I am the only member of that body who has the
honor to be also a member of this, it may be expected of
me that I should prepare the way for the deliberations of -
this assembly, by unfolding the difficulties which the late
convention were obliged to encounter, by pointing out
the end which they propose to accomplish, and by tracing
the general principles which they have adopted for the
accomplishment of that end.
.“ To form a good system of government for a single
· PENNSYLVANIA CONVENTION.
295
city or State, however limited as to territory, or incon-
siderable as to numbers, has been thought to require the
strongest efforts of human genius. With what conscious
diffidence, then, must the members of the convention
have revolved within their minds the immense under-
taking which was before them! Their views. could not
be confined to a small or single community, but were
expanded to a great number of States, several of which
contain an extent of territory, and resources of popula-
tion, equal to those of some of the most respectable king-
doms on the other side of the Atlantic. Nor were even
these to be the only objects to be comprehended within
their deliberations. Numerous States yet unformed,
myriads of the human race who will inhabit regions yet
uncultivated, were to be effected by the result of their
proceedings. It was necessary, therefore, to form their
calculations on a scale commensurate to a large portion
of the globe...
“For my own part, I have been lost in astonishment
at the vastness of the prospect before us. To open the
navigation of a single river was lately thought in Europe
an enterprise adequate to imperial glory. But could the
commercial scenes of the Scheldt be compared with those
that, under a good government, will be exhibited on the
Hudson, the Delaware, the Potomac, and the numerous'
other rivers that water and are intended to enrich the
dominions of the United States ? "!
Taking this enlarged view of the subject, and
preparing the minds of his audience to learn that
the foundations of the government, with all due
consideration, were to be laid, not only for the
generation then on the stage of action, but " mil-
. 1 Elliot's Reports, vol. iii. p. 224.
PENNSYLVANIA CONVENTION.
lions yet unborn;" that they were laying the foun-
dation of a government that was to have a bearing
on many future generations, and that amid all the
jarring interests that had exhibited themselves in
the convention, yet, among them all, there was a
“keen sense of freedom and independence,” and
this sense heightened by the “glorious?! result
of the “late struggle they had passed through;”—
it would, it must, have produced an unequivocal,
condemnation in every honest mind in the assem-
bly if he had, in the course of his remarks, given
any intimation that, by adoption of that instrument,
slavery, which is, and always was, in direct opposi-
tion to a “keen sense of liberty,” should be by :
that instrument guaranteed to the South, perpet-
ually fastened on the country, and that the peo-
ple of his State would be liable, ever after, to be
called on to fight in opposition to these principles,
and that the "main object » 1 for which they were
called together was to devise ways and means by
which slavery could be maintained and perpetuated
on this continent. We opine, if such a statement
had been made at that day, before any one of the
northern conventions, Pennsylvania and the other
northern States would have indignantly refused its
adoption ;. they certainly could have done nothing
less. But, as slavery existed, and there was an in-
terest manifested to have it continued a little while
112
Mr. Duncan, of Ohio, in his speech made in the house of repre-
sentatives in 1840, and wbich was printed and widely circulated by
the party to which he is attached, made an observation to this
effect.
PENNSYLVANIA CONVENTION.
297
CD
.
longer, this, together with other supposed difficul-
ties, prevented their immediate action, or, rather,
they thought they had gained a point; for, while in
the Confederation, they could have none other than
a moral right to prevent its continuance, in the
Union they would have 'a legislative right to in-
terfere, in addition to the moral. But, in com-
bining and reconciling the jarring interest, either
real or supposed, conciliation and forbearance was
thought necessary to be practised, where the
“springs of opposition were so numeroiis and
strong," and the difference of the temper and dis-
position” was so great. He then says, —
• The citizens of the United States, however different
in other respects, are well known to agree in one strong-
ly marked feature of their character, — a warm and keen
sense of freedom and independence. This sense has
been heightened by the glorious results of the late strug-
gle against all the efforts of one of the most powerful
nations of Europe. It was apprehended, I believe, by
some, that a people so high spirited, would ill brook the
restraints of an efficient government. I confess this con-
sideration did not influence my conduct.” He then ob-
served," He did, and thought his constituents would up-
hold him in giving his vote for what, upon the best con-
sideration he could give, he thought was the right, not
what might be most agreeable."
We quote the following passage, not because of
its direct bearing on the subject under discussion -
though it may have in some remote degree - but
because it shows, in some measure, the opinions
entertained at that time of all governments, and
298
PENNSYLVANIA CONVENTION.
because the question has been for the second time
started in this country, that there should be no
human government."
“ Permit me to add, in this place, that the science of
even government itself seems yet to be almost in a state
of infancy. Governments in general have been the
result of force, of fraud, and of accident. After a period
of six thousand years has elapsed since the creation, the
United States. exhibit to the world the first instance, so
far as we can learn, of a nation unattacked by external
force, unconvulsed by domestic insurrections, assembling
voluntarily, deliberating fülly, and deciding calmly, con-
cerning that system of government under which they
would wish that they and their posterity should live.” 2
But, if slavery was to be guaranteed to the
South, and the ignorance of the unenlightened
· African was to be taken advantage of, and he
made, in consequence of it, to be the “hewer of
wood and drawer of water" for an indefinite
number of ages, how shall the men of that day
escape the charge of founding a government, at
least for the colored man, on force, on fraud,
and on accident ? Those better acquainted with
metaphysics than we are must answer, if they
can reconcile justice with the present system of
slavery.
After speaking of the various kinds of govern-
? We here allude to the discussion on this subject now going on,, '.
and to the Rev. Mr. Eliot, the Indian missionary of the State of
Massachusetts, who put forth a pamphlet denying the authority of
human governments, but by persuasion was induced to suppress it.
? Elliots Reports, vol. iii. p. 227.
PENNSYLVANIA CONVENTION.
299
ments that had existed, and the kind best suited
toʻthe United States, he said, -
• The principles and disposition of their citizens.indi-
cate, that, in this government, liberty shall reign tri-
umphant. Such, indeed, have been the general opinions
entertained since the era of independence. If those
opinions and wishes have been as well founded as they
have been general, the late convention have been justi-
fied in proposing to their constituents one confederate
republic as 'the best system for a national government
for the Uyited States.” :
And again he says, -
“ We have remarked, civil government is necessary
to the perfection of society. We now remark that civil
liberty is necessary to the perfection of civil government.
Civil liberty is natural liberty itself, divested of only that
part which, placed in the government, produces more
good and happiness to the community than if it had
remained in the individual. Hence it follows that civil
liberty, while it resigns a part of natural liberty, retains
the free and generous exercise of all the human faculties,
so far as is compatible with the public welfare." ?
• What civil liberty has the slave, or even the
colored man, in this country? None whatever.
But some may answer, the public welfare requires
the slave to be kept in bondage, and the colored
man to be spurned from all good society.; that it is
even dangerous to grant him his inalienable rights;
that, to preserve the liberty for which we have
suffered so much, slavery must yet be continued,
the colored man must yet be under tutelage; that
Elliot's Reports, vol. iii. p. 231.
? Idem, vol. iii. p. 232.
- 300
PENNSYLVANIA CONVENTION.
Tih
he has yet to learn what is meant by true free-
dom; that, in his present state of ignorance, he is
incapable of sustaining the principles of free gov-
ernment; and, consequently, that his, as well as
the white man's, happiness is enhanced by having
him continued, as it is said, in "his place,'— con-
tinued as a servant, or as a slave; and that, being
incapable of attaining to a just sense of true liberty,
it is necessary to keep him under the restraints
which the peculiar institution of slavery affords.
These are grave assertions, and perhaps should be
answered with gravity; and, in doing so, we must
simply refer the reader to the time when this same
race was the centre and seat of civilization, long ..
before we have any records of a white race at all;
and the ruins of ancient cities, that are now found
in Ethiopia, attest to their ability; and nothing
but an opportunity to display their talents is prob-
ably now wanting to show their equality with any
other people: in fact, if the researches of antiqua-
rians are correct, and it is true the island of Great
Britain was settled by a colony from Tyre, we can
trace our own descent directly to the Ethiopian.
But Mr. Wilson continues :
“In considering and developing the nature and end
of the system before us, it is necessary to mention an-
other kind of liberty, which has not yet, as far as I
know, received a name. I shall distinguish it by the
appellation of federal liberty. When a single govern-
ment is instituted, the individuals of which it is composed
surrender to it a part of their natural independence,
which they before enjoyed as men. When a confeder-
PENNSYLVANIA CONVENTION.
301
ate republic is instituted, the communities of which it is
composed surrender to it a part of their political inde-
pendence, which they before enjoyed as States. The
principles which directed in the former case — what part
of the natural liberty ought to be given up, and what
part ought to be retained - will give similar directions in
the latter case. · The States should resign to the national
government that part, and that part only, of their politie
cal liberty. which, placed in that government, will pro-
duce more good to the whole than if it had remained in
the several States : while they resign this part of their
political liberty, they retain the free and generous exer-
.cise of all their other faculties as States, so far as is
compatible with the welfare of the general and super-
intending confederacy."!
Speaking of the inadequacy of the Confedera-
tion to secure the objects proposed in the foregoing
statements, and observing while no foreign power
had been able to overpower them, yet, for the
want of a government sufficiently strong to re-
strain the States, they were “ devoid ” “ of na-
tional power," " of national importance," " of na-
tional credit,” 6 of national dignity," " of national
energy," so that they could not carry into execu-
tion their own resolutions, decisions, or laws, -
he then goes on to say, mm
Under these impressions, and with these views, was
the late convention appointed; and under these im-
pressions, and with these views, the late convention met.
66 We now see the great end which they propose to
accomplish. It was to frame, for the consideration of
* Elliot's Reports, vol. iii. p. 232.
26
PENNSYLVANIA CONVENTION.
their constituents, one federal and national Constitution, .
- a Constitution that would produce the advantages of
the good, and prevent the inconvenience of bad govern-
ment,-a Constitution whose beneficence and energy
would pervade the whole Union, and bind and embrace
the interest of every part, - a Constitution that would
insure peace, freedom, and happiness to the States and
people of America.")
Be it remarked, he does not say here that it was
to the Northern or Southern States alone, or that it
was to the black or white people alone ; but to the
people, whether white or black, within the borders
of the government, without there being any dis-
tinction as to classes. .
". In the foregoing observations we perceive the
true nature of our government; we live not under
a confederated republic, under federal liberty mere-
ly, but under a government formed for the purpose.'
of securing liberty to the States and to individu-
als, in order to secure the general welfare of the
whole. When, therefore, the whole, or any one,
of these objects are not attained, and the liberty of
the individual, or of the States, is not secured,
and, consequently, the welfare of the whole is not
procured, then the purposes for which this Consti-
tution, this league, this compact, this ordinance, or
whatever else it may be called, is not brought about:
it is diverted from its original purpose, and is no
longer binding on any; and, if ever our courts decide
these objects are not obtained by our Constitution,
then do we believe that instrument has been made
0
1 Elliot's Reports, vol. iii. p. 234.
PENNSYLVANIA CONVENTION.
303
.
in vain, and the population of these United States
and the world at large have been inost egregiously
deceived, and that it is time for another general
convention to be holden to amend it, and cause,
if human government can secure them, our most
important rights to be secured, or else the hope
of the world, in regard to the American Con-
stitution, is lost forever. The books that have
been written upon this subject have of late all in-
dicated a change to be anticipated, respecting our
feelings and dispositions, on the subject of re-
ducing to and keeping a portion of our population in
slavery, and which clearly indicate that this ques-
tion must be settled, if we do not wish the whole
intent and policy of our fathers to be frustrated;
.. and our land, instead of being the land of the free,
the virtuous, and the moral, will become the land
of the slave, the dissolute, and the weak, given
over to licentiousness and to utter destruction.
Will the people of the United States sanction
this perversion ? will they countenance the doc-
trine that our community must be divided into
classes, each having its “appropriate sphere "
in the body politic ? This question is to be
answered by the people of America ; and let not
the white laborer at the North foolishly imagine
that, by riveting the chains on the colored man at
the South, they are not fastening them on their
own limbs. Let us again tell them, if they will
believe us, their interest is one and inseparable
with that of the slave ; and, if they give their
304
PENNSYLVANIA CONVENTION.
sanction to that institution, they are but sealing
their own fate : they themselves must be prepared
to receive the galling yoke. Slavery, if it is
allowed to be continued at all, will not feel
as if it should be confined within metes and
bounds. If it is a good and a blessing at the
South, what should prevent its being such at the
North ? Such will be the arguments; and, if
they are correct, the consequence. must follow.
Arouse, then, freemen of the North, while ye may!
Shake off the shackles, and spurn the slavehold-
er's, whip! Give him assurances that you will
have no fellowship with him, that you desire not
his company, and wish he may not come into
your assemblies !
But Mr. Wilson continues, ---,
“It is urged, as a general objection to this system, that
the powers of congress are unlimited and undefined, and
that they will be judges, in all cases, of what is neces-
sary and proper for them to do.' To bring this subject to
your view, I need no more than to point to the words in
the Constitution, beginning at the 8th section, article ist :
The congress [it says) shall have power,' &c. I need
not read the whole of the words, but I leave it to every
gentleman to say whether the powers are not as accu-
rately defined as can be well done on the same subject, in
the same language. The old Constitution is as strongly
marked on this subject; and even the concluding clause,
with which so much fault has been found, gives no more
or other powers, nor does it in any degree go beyond
the particular enumeration ; for, where it is said that
congress shall have power to make all laws which shall
be necessary and proper, these words are limited and
PENNSYLVANIA CONVENTION.
305
defined by the following, for carrying into execution
the foregoing powers.'' It is saying no more than that
the powers we have already particularly given shall be
effectually carried into execution.” 2
After speaking of the manner that electors were
to be chosen, he says, –
- This being made the criterion of the right of suf-
frage, it is consequently secured, because the same Con-
stitution guarantees to every State of the Union a repub-
lican form of government. The right of suffrage is fun-
damental to republics.
.“Sir, there is another principle that I beg leave to
mention, representation and direct taxation, under this
Constitution, are to be according to numbers." 3
How has this proved ? Why, the North has
had to pay the greater proportion of this tax : it
has not fallen upon numbers at all. The slave,
as we have said, uses but few foreign goods,
while the freeman uses the most that are im-
ported, and consequently pays the expenses of
government.
“I recollect, on a former day, the honorable gentle-
man from Westmoreland, [Mr. Finley,) and the honora-
ble gentleman from Cumberland, [Mr. Whitehall,] took
exception against the first clause of the 9th section, arti-
cle Ist. Arguing very unfairly that, because congress
might impose a tax or duty of ten dollars on the importa-
tion of slaves within any of the United States, congress
might therefore permit slaves to be imported within this
State, contrary to its laws, I confess I little thought this
system would be objected to.
1 See remarks on the powers of congress on page 196:
2 Elliot's Reports, vol. iii. p. 263. 3 Idem, vol. Hi..p.274..
26*
306
PENNSYLVANIA CONVENTION.
“I am sorry it could be extended no further ; but, so
far as it operates, it preșents us with the pleasing pros-
pect that the rights of man will be acknowledged and
established throughout the Union.
- If there was no other lovely feature but this one, it
would diffuse a beauty over its whole countenance. Yet,
the lapse of a few years ! and congress will have power
to exterminate slavery from within our borders ! ii
“How would such a delightful prospect expand the
breast of a benevolent and philanthropic European !
Would he cavil at an expression ? catch at a phrase ?
No, sir ; that is réserved for the gentlemen on the other
side of your chair to do. What would be the exultation
of that great man [Gen. Washington] whose name I
have just now mentioned, we may learn from the follow-
ing sentiments on this subject : they cannot be expressed
so well as in his own words :
6. The colonies of France contain, as we have seen,
near five hundred thousand slaves ; and it is from the
number of these wretches that the inhabitants set a value
upon their plantations. What a fatal prospect, and how
profound a subject for reflection! Alas! how inconse-
quent we are, both in our morality and our principles !
We preach up humanity, and yet go every year to bind
in chains twenty thousand natives of Africa:! We call
the Moors barbarians and ruffians, because they attack
the liberty of Europeans at the risk of their own; yet
these Europeans go without danger, and as mere specu-
lators, to purchase slaves, by gratifying the cupidity of
their masters, and excite all those bloody scenes which
are usually the preliminaries of such traffic. In short,
we pride ourselves on the superiority of man, and it is
with reason we discover this superiority in the wonderful
and mysterious unfolding of the intellectual faculties ;
and yet the trifling difference in the hair of the head,
PENNSYLVANIA CONVENTION.
307
or in the color of the epidermis, is sufficient to change
our respect into contempt, and to engage us to place
beings like ourselves in the rank of those animals devoid
of reason, whom we subject to the yoke, that we may
make use of their strength and of their instincts at com-
mand.
6.I am sensible, and I grieve at it, that these reflec-
tions, which others have made much better than me, are
unfortunately of very little use ! The necessity of sup-
porting sovereign power has its peculiar laws, and the
wealth of nations is one of the foundations of this power :
thus the sovereign who should be the most thoroughly
convinced of what is due to humanity would not singly
renounce the service of slaves in his colonies : time
alone could furnish a population of free persons to re-
place them; and the great difference that would exist in.
the price of labor would give so great an advantage to
the nation that should adhere to the old custom, that the
others would soon be discouraged in wishing to be more
virtuous. And yet would it be a chimerical project to
propose a general compact, by which all of the Eu-
ropean nations should unanimously agree to abandon the
traffic in African slaves ? They would in that case find
themselves exactly in the same proportion relative to
each other as at present; for it is only on comparative
riches that the calculations of power are founded.
66. We cannot as yet indulge such hopes.: statesmen
in general think that every common idea must be a low
one ; and, since the morals of private people stand in
need of being curbed and maintained by the laws, we.
ought not to wonder if these sovereigns conform to their
independence.
.666 The time may nevertheless arrive when, fatigued
with that ambition that agitates them, and of the contin-
ued rotation of the samne anxieties and the same plans,
308
PENNSYLVANIA CONVENTION.
.
they may turn their views to the great principles of
humanity; and, if the present generation is to be witness
of this happy revolution, they may at least be allowed
to be unanimous in offering up their vows for the perfec-
tion of the social virtues, and for the progress of public
beneficial institutions. These are the enlarged senti-
ments of that great man.” 1
Our southern people can here observe the views
that Washington entertained on the subject of
slavery and the slave-trade, and of the power that
government would have over them ; for he speaks
of the time when there might be a congress of
nations to relieve themselves of the anxieties that
pressed upon them, and that they would turn their
attention to the great principles of humanity.”
It is evident that Washington looked upon slavery
and its kindred vices with repugnance, and the
only difficulty with him was how to get rid
of them. He does not seem to entertain the idea
of individual action in the case as a sufficient rem-
edy: he wanted legislative action. He does not
appear to entertain any fears as to the result, so
far as safety to the community was involved, but
only the great difference that would exist in the
price of labor ; and so long as that difference was
maintained, and the morals of the community
needed restraint, different governments would
think they ought to retain the slave. Yet he
hoped the time might come when they, by gen-
eral consent, would turn their attention to the
“great principles of humanity," instead, as he
-
--
-
* Elliot's Reports, vol. ii. p. 276.
: PENNSYLVANIA. CONVENTION.
309
leads us to infer, to that of oppressing their fellow-
men; and it is with these views he seems to have
entered upon his office as president of the United
States. Whether he ever exerted himself to bring
about such a state as he here suggested, we are
unable to say. .
Mr. Wilson, it will be observed, assured the
convention of Pennsylvania that congress would
have full power to extirpate slavery throughout
the country; and that it was a very great argu-
ment with him in favor of its adoption; and he did
it because some persons in the convention were
ready to reject it on the ground that they sup-
posed congress might introduce slavery into the
State in opposition to its laws, which they did
not wish to have done, and they were assured it
could not be done..
From the foregoing observations of Mr. Wilson,
we find that the State of Pennsylvania came into
the Union with the express understanding that con-
gress might, and probably would, abolish slavery
throughout the United States, and that it was ex-
pected it would soon be done; and Mr. Wilson in-
troduced Washington's observations to satisfy the
convention that he was in favor of such a course.
In pursuing the discussion he burst out in this
exclamation, -
So Happy America! thy crisis was indeed alarming,
but thy situation was not desperate. We had confidence
in our country, though, on which ever side we turned,
we were presented with scenes of distress. Though the
jarring interests of the various States, and the different
:
310
PENNSYLVANIA CONVENTION.
habits and inclination of their inhabitants, all lay in the
way, and rendered our prospect gloomy and discour.
aging indeed, yet such were the generous and mutual
sacrifices offered up, that, amidst forty-two members, who
represented twelve of the United States, there were only
three who did not attest the instrument as a confirmation
of its goodness; happy Pennsylvania! this plan has been
laid before thy citizens for consideration ; they have sent
delegates to express their view; and listen, with rapture
listen!! from only three has opposition been heard
against it."
On the same page he says, -
, “We were told, some days ago, by the honorable gen-
tleman from Westmoreland, (Mr. Finley,] when speak-
ing of this system and its objects, that the convention no
doubt thought they were forming a compact, or contract,
of the greatest importance. Sir, I confess I was much
surprised, at so late a state of the debate, to hear such
principles maintained. It was matter of surprise to hear
the great leading principles of this system were still so
very much misunderstood. The convention no doubt
thought they were forming a contract!' I cannot an-
swer for what every member thought; but I believe
it cannot be said that they thought they were making a
contract, because I cannot discern the least trace of a
compact in that system. There can be no compact un-
less there are more parties than one. It is a new doc-
trine that one can make a compact with himself. The
convention were forming compacts !' with whom? I
know of no bargains that were made then. I am unable
to conceive who the parties could be. The State govern-
ments make a bargain with one another ; that is the
* Elliot's Reports, vol. iii. p. 286.
PENNSYLVANIA CONVENTION.
311
doctrine that is endeavored to be established by gentle-
men in opposition ; their State sovereignties wish to be
represented ! But far other were the ideas of the con-
vention, and far other were those conveyed in the system
itself.
“As this subject has been often mentioned, and as
often misunderstood, it may be proper to take some far-
ther notice of it. · This, Mr. President, is not a govern-
ment founded on compact ; it is founded on the power of
the people. They express in their name and authority,
• We the people do ordain and establish,' &c. from their
ratification alone it is to take its constitutional authority;
without that, it is no more than a tabula rusa."
Such, then, were Mr. Wilson's opinions respect-
ing this famous compact, and so much of it did
Pennsylvania know about it, when she gave her
assent to our present Constitution !
“I have already shown that this system is not a com-
pact, or contract; the system itself tells you what it is ;
it is an ordinance and an establishment of the people. I
think the force of the introduction to the work must, by
this time, have been felt. It is not an unmeaning flourish.
The expressions declare, in a practical manner, the prin-
ciples of this Constitution. It is ordained and estab-
lished by the people themselves, and we who give our
votes for it are merely the proxies of our constituents.
We sign it as their attorneys, and, as to ourselves, we
agree to it as individuals.”!
Speaking of the kind of government meant to
be established by the convention upon its being
asserted that an aristocracy was meant to be
formed, he says, -
* Elliot's Reports, vol. iii. p. 288.
312
PENNSYLVANIA CONVENTION.
“ The late convention was assembled to devise some
plan for the security, safety, and the happiness of the
people of the United States ; if they have devised a plan
that robs them of their power, and constitutes an aristoc-
racy, they are the parricides of their country, and ought
to be punished as such. What part of the system is it.
that warrants the charge ? :
.“ What is an aristocratic government? I had the honor
of giving a definition of it at the beginning of our debates :
it is, sir, the government of the few over the many, elected
by themselves, or possessing a share in the government
by inheritance, or in consequence of territorial rights, or
some quality independent of the choice of the people, -
this is an aristocracy; and this Constitution is said to be
an aristocratical form of government; and it is also said
that it is intended so to be by the members themselves of
the late convention who framed it.”
After asking " what peculiar rights have been
reserved to any class of men, on any occasion;"
or whether even the chief magistrate of the
United States enjoyed any privilege that was not
extended to every individual of the country;"
whether the offices were not open to "all,"?
whether poor or rich ;” whether there was any
"distinction" between the inhabitants of the
"city" or "country;" whether the places of
honor or emolument were confined to the few,
or to the members of the late convention, &c. &c.
he says, -
“ Far, far other is the genius of this system ; I have
already had the honor of mentioning its general nature,
? Elliot's Reports, vol. iii. p. 307.
PENNSYLVANIA CONVENTION.
313
G
but I will repeat it, sir; in its principles it is purely
democratical, but its parts are calculated in such a man-
ner as to obtain those advantages, also, which are pe-
culiar to the other forms of governments in other coun-
tries," &c.
But if the system of slavery was to be guaran-
teed to any portion of the land, would there not
have been an aristocracy of the most hateful kind ?
would not the many be subjected to the few ?
But, as Mr. Wilson declares, such was not the in-
tention of the convention: it must have been pre-
sumed by the people of Pennsylvania this was not
to be the case, and that no one was to have a
share in the government by inheritance. When,
then, we find, as is now the case, one class of per-
sons has the sole control of the government de-
posited in their hands, and another doomed to ab-
ject bondage, deprived of all participation not only
in civil government, but even the government
of themselves, — we ask; with all candor, can any
thing be a greater perversion of the intent and
meaning, as Mr. Wilson construed the Constitu-
tion, than is expressed in the idea that slavery
is guaranteed to the South ? or, as Mr. Dun-
can of Ohio has lately expressed it, that the main-
tenance of slavery was the principal cause for
the adoption of the Constitution ? and he, too, a
professed republican! It must be answered, such,
could not have been intended; and one cannot help
exclaiming, on reading such language from such
sources, O, the inconsistency of man! how good,
how bad, how wise, how foolish!
27
314
PENNSYLVANIA CONVENTION.
We will simply add, let it be remarked that the
preamble to the Constitution was declared not to
be an “unmeaning flourish,” but that it was, in a
" practical manner, the principle of this Consti-
tution."
He closes the arguments he had used for the
adoption of the Constitution with the following
words:
« Permit me to offer one consideration more that
ought to induce our acceptance of this system. I feel
myself lost in contemplation of its magnitude. By adopt-
ing this system we shall probably lay a foundation for
erecting temples of liberty in every part of the earth.
It has been thought by many, that on the success of the
struggle America has made for freedom will depend the
exertions of the brave and enlightened of other nations.
The advantages resulting from this system will not be
confined to the United States; it will draw from Europe
many worthy characters who pant for the enjoyment of
freedom. It will induce princes, in order to preserve
their subjects, to restore them a portion of that liberty of
which they have for so many ages been deprived. It
will be subservient to the great designs of Providence
with regard to this globe, the multiplication of mankind,
their improvement in knowledge, and their advancement
in happiness." I
May we not here appeal to the South, if they
yet lay any claim to virtue or honor, or if the in-
stitution of slavery has not already blinded their
eyes and stopped their ears, to reflect on the horrid,
the abominable idea of perpetuating a system
Elliot's Reports, vol. iii. p. 312.
PENNSYLVANIA CONVENTION.
315
which every good man, even among themselves,
deplores, and pronounces injurious to their own, as
well as the welfare of the slave, - and not to per-
petuate to future generations such a system, and .
cause the whole design of making this land the
land of freedom to be given up, that the 'withering
curse of slavery may be fastened upon it? We ask
them, in all candor, in all kindness, to prevent such
an occurrence, and in their national dignity help
proclaim to the world America is yet determined to
be free, not only in word, but in deed also; and
that they will no longer belie (for we must view
their present position such) the principles of our
Declaration of Independence, the Constitution of
our country, and the object for which it was
formed.
Mr. McKean, after stating, among other things,
that the convention had been three weeks in hear-
ing objections, went into an enumeration of them;
among others we find the following:
“That migration or importation of such persons as
any of the States shall admit, shall not be prohibited
prior to 1808, nor a tax or duty imposed on such im-
portation exceeding ten dollars for each person.”'
* That it was a consolidation of the States, and not a
confederacy. That it is an aristocracy, and was intend-
ed to be so by the framers of it.”
After briefly answering these objections, and
saying with regard to the introduction of slaves,
“ Provision is made that congress shall have power
Elliot's Reports, vol. iii. p. 312.
316
PENNSYLVANIA CONVENTION.
to prohibit the importation of slaves after the year.
1808,". 1 he says, “.
“But the gentlemen in opposition accuse this system
· of a crime, because it was not prohibited by them at
once. I suspect these gentlemen are not acquainted
with the business of the diplomatic body, or they would
know that an argument might be made that did not per-
fectly accord with the will or pleasure of any one person.
Instead of finding fault with what has been gained, I am
happy to see a disposition in the United States to do so
much.”
He closes his remarks with these words:
4 Upon the whole, sir, the law has been my study
from my infancy, and my only profession. I have gone
through the circle of office, in the legislature, executive,
and judicial departments of government, and, from all
my study, observation, and experience, I must declare
that, from a full examination and due consideration of
the system, it appears to be the best the world has yet
seen.
“I congratulate you upon the fair prospect of its being
adopted, and I am happy in the expectation of seeing
accomplished what has been long my ardent wish, that
you will hereafter have a salutary permanency.in majes-
tracy and stability in the laws." 2
These ideas might have been realized at this
time, so far as we can judge, were it not for
slavery. It is to this alone we can attribute the
mobs, the lynchings, and the use of the bowie
knife. These have been so generally made use of
at the South, we are. led to inquire where, south of
1 Elliot's Reports, vol. iii. p. 318.
2. Idem, vol. iii. p. 322.
PENNSYLVANIA CONVENTION..
317
the Potomac, has the majesty of the laws been at
all maintained, if the question of slavery has been
in the most remote degree involved? There is no
law for the slave, or him who desires his freedom:
both are beyond the protection of law; and, so far
as they are concerned, the majesty of the country
is but a broken reed ; and, if a man should attempt
to lean on it, he would be pierced through as with
a dart. The universal expression is, there is no
trust to them; and yet this is called a land of
0
any thing be more untrue ? it is neither one nor
the other. The slave is restrained because it is
said he is born a slave; the white man, because he.
must not question such violation of every thing
And, consequently, we find in all the arguments
brought forward to sustain the system—if argu-
ments there are any — a most confused" mixture of
truth and falsehood, and such an attempt to blend.
liberty and slavery, that perfect nonsense, or the
blending the meaning of words, is the only result ;
or else we come off like the platter in Mother
Goose's Melodies, wiped perfectly clean:
" Jack Sprat could eat no fat;
His wife could eat no lean ;
And so betwixt them both
They wiped the platter clean.".
It is thus with the rights of both the white and
colored man: the South will not endure the slave
should possess any, and the people at the North
cannot endure the white man should open his lips
27*
318
PENNSYLVANIA CONVENTION.
to assert he has any; and so, forsooth, for the mess .
of pottage which it is supposed can be wrung out
of the hard earnings of the slave, this whole land,
this whole continent, must be delivered over into
the hands of despotism; and that beautiful and
satisfactory idea, that men, as a body, can govern
themselves, and by the light of reason, which as a
lamp is placed within the breast of every one,
guided by the Spirit of God, is enough to show
them in their path, and direct thern in the way
they should go, must give place to the horrible
one that man requires a keeper; that by his Cre-
ator a large portion, at least, are made incapable of
taking care of themselves, and, in consequence,
there must be lords, there must be masters. Are
the people of America ready to sanction this doc-
trine ? Are they ready, after passing through the.
severe struggle they have, now to lay down their
arms and submit unresistingly to the chains that
are ready to be forged for their limbs? Do they
mean to give up the contest, and recline in inglo-
rious ease, and let the man be swallowed up in the
brute ? If so, let slavery be continued ; let our
Constitution and the Declaration of Independence
be blotted from the records of the nation ; let us
proclaim to the world we are a debased people;
that all we have heretofore said upon the subject
of liberty was but a “rhetorical flourish," unmean-
ing sounds, and spoken only to deceive; that we
all had ulterior views. It was not the good of
man we sought; it was not for him we contended ;
but, rather, that our own selfishness might be
PENNSYLVANIA CONVENTION.
319 .
gratified, and that we might have increased oppor-
tunity to lord it over our brother man.
We do not yet believe the American people
have so far descended in the scale of degradation
that they will sanction the proceeding of those at
the South who yet hold slaves, or those at the
North who encourage them in it. But, rather,
that they will come out and assert the purity of
their motives, and in all their tribunals they will
speak a voice on the side of freedom that shall not
be misunderstood.
CHAPTER XII:.
EXTRACTS FROM MR. W
LIFE OF PATRICK HENRY.
In making these, and perhaps in some of our
other extracts, we have not strictly followed the
precise language, though we have, in all cases, we
believe, kept strictly to the idea. We have ad-
vanced no thought that was not in the mind of the
writer or speaker. We should have had to copy
so much from this work, had we used in all cases
the language of Mr. Wirt or Mr. Henry, - though
the language of both is extremely interesting,
and is well worth perusing by every one, -- it
would have swelled our own volume beyond what
might be desirable. As we have, however, made
our references when the language is the most
closely followed, we hope those who are sensitive
on this point will excuse us for any departure we
have allowed ourselves in this particular.
In making the following extracts, we are aware
it may involve us in some repetition; but, as they
help to elucidate our subject, and to show the
thoughts and feelings of one of the most distin-
guished men of the age in which he lived, the
anxiety he felt for the liberties of the country, and
the jealousy with which he received the adoption
of the present Constitution of the United States,
OBSERVATIONS OF PATRICK HENRY.
in the bearing it might have on those liberties, we
have concluded to make them.
As we are now entering upon an era either for
good or for ill, as the question of slavery may be
decided in this country, and upon that decision
the happiness of millions, perhaps for many gene-
rations, may be involved, all the light that can be
thrown upon this discussion, and the thoughts of
those who have taken an interest in this subject,
and particularly of those who have taken an active
part in bringing about a state of society such as
that in which we are at present living, should be
fairly laid before the community, that they may
be able to decide and to judge how far that light
should be followed, and wherein the judgment of
our predecessors was governed by truth and right
reason.
There can be no doubt we should at times fol-
low an ignis fatuus, if we should attempt blindly
to follow any one individual in all his imaginings;
but yet perhaps we may be able to learn something
even from the incoherent wanderings of a dreamer.
There is beauty in the flower, though we some-
times'crush it beneath our feet; and we, perhaps,
should be surprised at the delicacy of its tints and
outlines, were we to take more particular notice of
its parts, the order and perfection of its arrange-
ments. Nothing is to be looked upon with indif-
ference. A single thought has produced revolu-
tions, and may yet produce many more.
The United States may be considered as ad-
vancing to a state of manhood. In their child-
OBSERVATIONS OF PATRICK HENRY.
.
hood and their youth, they may have suffered
much, or they may have wandered, through igno-
rance, or otherwise, from the path which leads to
that liberty for which they all appeared to be anx-
iously striving. They may have made many mis-
takes and many blunders ; but the object which
they meant to obtain was kept constantly in view:
and now the question is fairly placed before us,
will we pursue that object, and secure now, in our
greater strength and our advancing light, that lib-
erty which each is anxious to obtain for himself,
and which our fathers have given us for our 'inher-
itance? or shall we turn around and say we will
no longer follow the instructions of our fathers,
but, on the contrary, pursue a course, that will
reduce a good portion of our people to a state
of bondage, and, instead of that equality which
they introduced in all their public proceedings,
have orders and classes in society where a part,
whether they will or no, shall do the bidding
of the other? These, we think, are the questions
now before the American people ; and on that de-
cision our future destiny hangs. Not only our
political and civil relations will be affected by it,
but Christianity is involved. It will be idle for us
to pretend to carry out the command to “Do
unto others as we would have them do unto us,"
when slavery shall be the established law of the
land, when - we shall have determined to make
brutes of all persons we can get within our power.
We may say, even, we give up our hopes of im-
mortality, and deny our responsibility to our God,
OBSERVATIONS OF PATRICK HENRY.
323
when such shall be our settled determinations.
For what must be the thoughts and satisfaction of
that man, when, in a future state, he meets with
those he has abused and shamefully .entreated
while on earth, if he believes his God has com-
manded him to do otherwise ? Will he continue
to act in opposition to those commands? We
think not; and, if we are correct, the conclusion
must be, that the settled determination to continue
slavery involves not only the destruction of our
liberties, both civil and religious, but our Chris-
tianity, and our hopes of an immortality. We are
infidels; we are reduced to the level with the
brute; we are superior to them only as we have
greater reasoning powers; our hopes and expec-
tations of a future life are laid prostrate in the
dust; slaveholding is atheism carried into prac-
tice.
- These thoughts may be considered somewhat
out of place, as an introduction to the quotations
, that follow; and yet we do not think them wholly
so. The reader, however, will be able to judge.
But, without keeping him in further suspense, we
will make the following extracts from the resolu-
tions of the Virginia assembly in 1765, concerning
the stamp act, a copy of which was found among
the papers of Patrick Henry, sealed, to be opened,
after his death, by his executor :
“That, by two royal charters, granted by king James
the First, the colonies aforesaid are declared entitled to
all the privileges, and liberties, and immunities of deni-
zens and natural born subjects, to all intents and pur-
324
OBSERVATIONS OF PATRICK HENRY.
01
M
11
poses, as if they had been abiding and born within the
realm of England."?
There were three other resolutions, which re-
ferred to taxation, --one declaring where the power
laid, viz. that the “taxation of the people by them- .
selves" "is the distinguishing characteristic of
British freedom;" another, that it was invested
in the people ; and another, that the colonies had
enjoyed the right of taxing themselves, and that
they had not forfeited that right, and that to invest
it in any other would destroy “British as well as
American freedom." After stating the causes
which induced him to offer these resolutions, and
the effect they had on the universal resistance of
British taxation, and the separation of the two
countries, he concludes his remarks by saying,
“Whether this will prove a blessing or a curse, will
depend upon the use our people make of the blessings
which a gracious God hath bestowed upon us. If they
are wise, they will be great and happy. If they are of
a contrary character, they will be miserable. Right-
eousness alone can exalt them as a nation. Reader!
whocver thou art, practise virtue thyself, and encourage
it in others.
P. Henry.”
Immediately after the promulgation of what was
called the Boston port bill, the house of burgess in
Virginia recommended, on the 29th of May, 1774,
that a convention of the States should be called,
to take into consideration the general interest that
the colonies should from time to time require; and,
TT.
ad
1 Wirt's Life of Patrick Henry, p. 74.
OBSERVATIONS OF PATRICK HENRY.
325
TT
to give effect to this recommendation, delegates
were shortly after chosen, to meet at Williams-
burg ; among other purposes, to appoint deputies
to the general congress. John Symmes and Pat-
rick Henry were chosen ; and in the instructions
given them by the assembly, what subjects they
wished them to deliberate upon, the following
was one:
66 The African trade for slaves we consider the most
dangerous to the virtue and welfare of this country.
We therefore wish to see it totally discouraged.”!
After the war, the question arose, as to the pro-
priety of allowing the return of the British refu-
gees. Mr. Henry favored their return, in opposi-
tion to the views then generally held, and was
successful in convincing the house of delegates of
its propriety. He spoke of the vastness of the
country, its prospects, and the need there was for
inhabitants, and the necessity there was for en-
couraging emigration, and of making this country
the home of the skilful, the industrious, the fortu-
nate and happy, as well as the asylum of the dis-
tressed,” so that, finally, the country may be able
"to take care of itself.”
“Do you ask how you are to get them? Open your
doors, sir, and they will come in. The population of
the old world is full to overflowing. That population is
ground, too, by the oppression of the governments under
which they live. Sir, they are already standing on tip-
toe upon their native shores, and looking to your coasts
Wirt's Life of Patrick Henry, p. 118.
28
326
OBSERVATIONS OF PATRICK HENRY:
with a wishful and longing eye; they see here a land
blessed with natural and political advantages which are
not equaled by those of any other country upon earth,
-a land on which a gracious Providence hath emptied
the horn of abundance, -- a land on which peace hath
now stretched her white wings, and where content and
plenty lie down at every door! Sir, they see something
still more attractive than all this ; they see a land in
which LIBERTY hath taken up her, abode, -- that liberty
whom they had considered as a fabled goddess, existing
only in the fancies of poets, —- they see her here as a
real divinity, her altars rising on every hand throughout
these happy States, her glories chanted by three mil-
lions of tongues, and the whole region smiling under
her blessed influence. Sir, let but this celestial goddess,
LIBERTY, stretch forth her fair hand towards the people
of the old world, tell them to come, and bid them wel-
come, and you will see them pouring in from the north,
from the south, from the east, and from the west ; your
wildernesses, will be cleared and settled, your deserts
will smile, your ranks will be filled, and you will soon
be in a condition to defy the powers of any adversary.” 1
He felt no fears of any danger arising from the
return of the British refugees. But do these
people of the old world now go to the Southern
States, when they find that slavery is there ? or
do they not, as has been observed in the house of
delegates of Virginia within a few years, avoid
them as they would a pestilence ? And how can
it be otherwise ? They come, as Mr. Henry said
they would, in search of liberty, and they are
not to be mocked when they get here, by going
? Wirt's Life of Patrick Henry, p. 252.
OBSERVATIONS OF PATRICK HENRY.
327
into our Southern States : they have seen oppres-
şion enough in the old world, and, when they
come here, they are able to distinguish the beast,
though it is covered up by the name of the pa-
triarchal institution. Will Virginia always force
these people from her borders ?
Lafayette, who had been to France, and re- .
turned in 1784, went to Williamsburg, in Virginia,
while the house of delegates was in session.
Patrick Henry with others were a committee to
address him. In answer to their address, Lafay-
VI
position of Virginia:
may all the waters which so luxuriantly flow within her
limits be happy channels of the most extensive trade ;
and may she, in her wisdom, and in the enjoyment of
prosperity, continue to give the world unquestionable
proof of her philanthropy and her regard for the liber-
ties of all mankind.” 1
When the adoption of the Constitution was
under discussion, Patrick Henry, it appears, op-
posed it. He saw in it, as he thought, the seeds
of a mighty monarchy, and that it would eventu-
ally be perverted to favor despotism. He thought
the Confederation was sufficient for all the pur-
poses of freedom and self-government; he saw no
danger from the state of things at that time, and
he thought the delegates to the convention had
extended their instructions, and, instead of making
1 Wirt's Life of Patrick Henry, p. 266.
OBSERVATIONS OF PATRICK HENRY.
a confederation of the States, they had made a
consolidated government. And he significantly
asked what right they had to say “we the peo-
ple," instead of "we the States.” If the States
are not the agents of the compact, it must be one
great consolidated national government of the
people of all the States. The people gave them
no power to use their name :
“ The federal convention ought to have amended the
old system ; for this purpose they were solely delegated.
He then asks why it was they made the proposed
change in the government ? Mr. Randolph and Mr.
Lee answered, and thought Mr. Henry had appealed to
the fears of the members of the assembly, and objected
to the course, and wished the house to decide according
to their judgment, and not to alarm.
“Mr. Henry answered, when he asked the questions
he did, he thought his meaning was obvious. The fate
of America might depend upon them. Have they said
we the States ? If they had, this would be a confedera-
tion ; it is most clearly obvious a consolidated. govern-
ment. The whole question turns on that poor little thing,
the expression We the people, instead of States of
America." 1
"He then proceeded to set forth in terrible ar-
ray his various objections to the Constitution; not
confining himself to the clause under debate, but
ranging through the whole of it, as the objections
followed each other in his mind.” In this dis-
cussion he was opposed by " Mr. Pendleton, Mr.
Wythe, Mr. Madison, Mr. Marshall, Mr. Nicholas,
f
1 Wirt's Life of Patrick Henry, p. 284.
OBSERVATIONS OF PATRICK HENRY.
329
LU
Mr. Randolph, Mr. Innes, Mr. Henry Lee, and Mr.
Corbin ;" but, although opposed by such "fearful
odds,” he continued the discussion for twenty
days, with but three auxiliaries.
should in as radical as radical, if it, and the soverlainly
6 The objection that the Constitution substituted a con-
solidated in lieu of a confederated government, and that
this new consolidated government threatened the total
annihilation of the State sovereignties, was pressed by
him with the most masterly power. He said there was
no necessity for the change of government so entire and
fundamental, and no inducement to it, unless it was to be
found in this splendid government, which, we were told,
was to make us a great and mightypeople. We have
no details,' said he, of these great considerations,
which, in my opinion, ought to have abounded before we
should recur to a government of this kind. Here is a
revolution as radical as that which separated us from
Great Britain. It is as radical, if in this transition our
rights and privileges are endangered, and the sovereign-
ly of the States be relinquished ; and cannot we plainly
see that this is actually the case? The rights of con-
science, trial by jury, liberty of the press, all of our
immunities and franchises, all pretensions to human
rights and privileges, are rendered insecure, if not lost,
by this change, so loudly talked of by some, and so
inconsiderately by others. Is this tanie relinquishment
of rights worthy of freemen? Is it worthy of that
manly fortitude that ought to characterize republicans ? "
....“ You are not to inquire how your trade may be
increased, nor how you are to become a great and pow-
erful people, but how your liberties can be secured ; for
liberty ought to be the direct end of your government.
Is it necessary for your liberties that you should abandon
these great rights, by the adoption of this system ?"...
28*
330
OBSERVATIONS OF PATRICK HENRY.
“ Liberty, the greatest of all earthly blessings, --- give
us that precious jewel, and you may take every thing
else."...." Perhaps an invincible attachment to the
dearest rights of man may, in these refined, enlight-
ened days, be deemed old-fashioned : if so, I am con-
tented to be so. I say the time has been when every
pulse of my heart beat for American liberty, and which
I believe had a counterpart in the breast of every true
American.” 1
After stating his patriotism was suspected, and
it had been declared on the opposite side those
suspicions were groundless, he says,
“Guard with jealous attention the public liberty.
Suspect every one who approaches that jewel. Unfor-
whenever you give up that force, you are inevitably
ruined. I am answered by gentlemen, that, though I
might speak of terrors, yet the fact was, we were sur-
rounded by none of the dangers I apprehended. I con-
·ceive this new government to be one of those dangers :
it has produced those horrors which distress many of
our best citizens. We are come hither to preserve the
poor commonwealth of Virginia, if it can be possibly
and mine. The confederation, this same despised gov-
ernment, merits, in my opinion, the highest encomium :
it carried us through a long and dangerous war, – it
rendered us victorious in that bloody conflict with a
powerful nation, - it has secured us a territory greater
than any European monarch possesses, — and shall a
government that has been thus strong and vigorous be
accused of imbecility, and abandoned for the want of
1 Wirt's Life of Patrick Henry, p. 288.
OBSERVATIONS OF PATRICK HENRY.
331
energy? Consider what you are about to do before you
part with this government. Take longer time in reck-
oning things. Revolutions like this have happened in
almost every country in Europe ; similar examples are
to be found in ancient Greece and'ancient Rome, - in-
stances of people losing their liberty by their own care-
lessness and the ambition of a few. We are cautioned
by the gentleman who presided against faction and tur-
bulence. I acknowledge that licentiousness is danger-
ous, and that it ought to be provided against : I acknowl-
edge that the new form of government may effectually
prevent it. Yet there is another thing it will as effectu-
ally do: it will oppress and ruin the people. There are
sufficient guards placed against faction and licentious-
ness ; for, where power is given to this government to
suppress these, or for any other purpose, the language
it assumes is clear, express, and unequivocal ; but, when
this Constitution speaks of privileges, there is an am-
biguity, sir, -- a fatal ambiguity, which is very aston-
ishing."
It had been urged it would increase the military
strength of the country; and, if the convention rose
without adopting the instrument, "disunion and
anarchy would be the consequence :" in answer to
them he said, -
“ Happy will you be, if you miss the fate of those na-
tions who, omitting to resist their oppressors, or negligent-
ly suffered their liberty to be wrested from them, have
groaned under intolerable despotism! Most of the human
race are now in this condition. And those nations who
have gone in search of grandeur., power, and splendor,
have also fallen a sacrifice, and been the victims of their
1 Wirt's Life of Patrick Henry, p. 290..
OBSERVATIONS OF PATRICK HENRY.
own folly. While they have acquired those visionary
blessings, they have lost their freedom.”ı
In alluding to the strength which the power of
the militia would give the government, he said,
“ This acquisition will trample on your fallen lib-
erties !"2 He wanted his "beloved Americans"
to be guarded against such lethargy; and he asked,
where was there any, danger now? "Other gen-
tlemien have told us, within these walls, that the
union is gone, or that the union will be gone. Is
not this trifling with the judgment of their fellow-
citizens ? Till they tell us the ground of their
fears, I will consider them as imaginary." He
thought he could appeal to the patriotism of the
American people with perfect safety; and observed
how completely they had been submissive to the
laws throughout its struggle. There was no dan-' .
ger from Europe, and he thought he could trust
the American spirit, and that the dangers they ap-
prehended were all ideal.
He objected to the mode of amending the Con-
stitution; he thought a majority of the people
ought to have the power of making amendments,
as they should judge most conducive to the public
weal, as it had been set forth in the Virginia bill of
rights; but, as the Constitution was, one tenth part
of the people could prevent any amendment. He
called it a contemptible minority, and contrary to
the spirit of democracy; and if “gentlemen stand-
ing on this ground have come to that point, -- are
1 Wirt's Life of Patrick Henry, p. 291.
2 Idem, p. 292.
OBSERVATIONS OF PATRICK HENRY.
333
1
S
willing to bind themselves and their posterity to
be oppressed," — he was amazed and inexpressi-
bly astonished !” It appeared to him perilous and
destructive; and, if thus left, their liberties are gone
forever. He alluded to the practice of bribing in
England; but observed that “English liberty is
on a firmer foundation than American liberty. It
will be easily contrived to procure the opposition
of one tenth of the people to any alterations, how-
ever judicious.” It had been said it was in the
power of the people to assemble in convention, and
recall their delegated power, and punish their ser-
vants. He ridiculed this idea.
“O, sir, we should have fine times indeed, if, to punish
tyrants, it was only necessary to assemble the people !
Your own arms wherewith you could defend yourselves
are gone, and you have no longer an aristocratical or
democratical spirit!”..." You read a riot act in one
of the freest countries in the world, where a few neigh-
bors cannot assemble without the risk of being shot by a
hired soldiery, the engines of despotism. We may see
such an act in America. A standing army we shall
have, also, to execute the commands of tyranny, [we
hope this prophecy will not be fulfilled ;] and how are we
to punish them? Will you order them to be punished ?
Who shall obey these orders ? Will your mace-bearer
be a match for a disciplined regiment? In what situa-
tion are we to be? The clause before you gives the
power of direct taxation unbounded and unlimited ; ex-
clusive power of legislating in all cases whatsoever for
the ten miles square, and over all places purchased for
the erection of forts, magazines, arsenals, dock-yards,
&c. What resistance could be made? The attempt
would be madness. You will find all the strength of this
334
OBSERVATIONS OF PATRICK HENRY. -
country in the hands of your enemies; those garrisons
will be the strongest places in the country. Your militia
is given up to congress, also, in another part of the plan ;
they will therefore act as they think proper ; all power
will be in their own possession; you cannot force them
to receive their punishment."
- He continued to ridicule the expected splendor of
the new government, and the other imaginary checks and
balances which were said to exist in this Constitution.
be because we like a splendid one. Some way or other
we must have a great and mighty empire. We must
have an army, and a navy, and a number of other things !
When the American spirit was in its youth, the language
of America was different. Liberty was the primary
object. And, again, this Constitution is said to have
beautiful features. When I come to examine these
features, sir, they appear to be horribly frightful.
Among other deformities, it has an awful squinting ; it
squints towards monarchy. And does not this raise in-
dignation in the heart of every true American?".
• He then goes on to say how it could be done,
and that we must not always depend on having
good men in office; and he asked where there
was ever a country which had depended on such
then shows how the president may make himself
king; and, with his power, it could be done; and
then what will become of your rights ? and upon
this danger it is said he became so eloquent the
- reporter could not follow him in his flights.
He then summed up the chief objections to the
Constitution under the following heads;
1.
DU
OBSERVATIONS OF PATRICK HENRY.
335
"1. That it was a consolidated instead of a confed-
erated government; that the delegates of Philadelphia
· had transcended the limits of their commission; changed
fundamentally the relation which the States chose to bear
to each other; annihilated their respective sovereignties ;
destroyed the barriers which divided them, and con-
verted the whole into a solid empire. To this leading
objection almost all the rest had reference, and were
urged principally with the view to illustrate and en-
force it.
“2. The vast and alarming array of specific powers
given to the general government, and the wide door
opened for the unlimited extension of those powers, by
the clause which authorized congress to pass all laws
necessary to carry the given powers into effect. It was
urged that this clause rendered the previous specifica-
tion of powers an idle illusion, since, by the form of con-
struction arising from that clause, congress might do any
thing and every thing, it chose, under the pretext of
giving effect to some specific power.
63. The unlimited power of taxation of all kinds. The
States were no longer required, in their federative char-
acter, to contribute their respective proportions toward the
expenses and engagements of the general government.
It authorized congress to go to the pockets of every man
in the country;" and he thought that, over so vast acoun-
try, taxes by the general government could not be regu-
lated in such a manner as would be equal, or would be
submitted to. “ It was resolved, he saw clearly, that we
must be a great and spendid people ; and, in order to be
so, immense revenues must be raised from the people ;
the people were to be loaded down with taxes, direct
and indirect, and a swarm of federal tax-gatherers were
to cover this land, to blight every blade of grass, and
336
OBSERVATIONS' OF PATRICK HENRY.
every leaf of vegetation, and to consume its produc-'.
tions for the enrichment of themselves and their mas-
ters, &c.
. .
“4. The power of raising armies and building navies,
and, still more, the control given to the general govern-
ment over the militia of the States, was most strenuously
opposed. This country, whose best policy was peace,
was to be saddled with the expense of maintaining stand-
ing armies for no other purpose than to insult her citi-
zens, to afford a pretext for increased taxes, and an
augmented public debt; and, finally, to subvert the liber-
ties of the people. Her militia, too, the last remaining
defence, was gone,” and he asked Mr. Madison candidly
to tell him, " when and where did freedom exist when
the sword and purse were given up from the people ?
Unless a miracle in human affairs shall interfere, no
nation ever did, or ever can, retain its liberty after the
loss of the sword and the purse, &c.
“5. He objected to the judiciary system, and the
power of congress of multiplying inferior courts, -a
power he thought they would not fail to exercise, in order
to swell the patronage of the president to their own
emolument, &c.
. “6. He contended the trial by jury was gone in civil
cases, and in criminal ones it was worse than gone. In
the first place, because the Supreme Court had appellate
power over the law and the facts in every case, and
which thereby enabled that tribunal to annihilate both
the verdict and judgment of the inferior courts; and that
in criminal cases, also, the trial by jury was worse than
gone, because it was admitted that the common law,
which alone gives the challenge for favor, would not be
in force as to the federal courts; and hence a jury might
in every instance be packed to suit the purposes of
prosecution.
OBSERVATIONS OF PATRICK HENRY.
337 ;
567. The authority of the president to take command
“8. The cession of the whole treaty-making power to
the president and senate was considered one of the most
formidable features in the instrument.” He thought the
lower house ought to be included.
-“9. The immense patronage of the president was
objected to.
“10. The irresponsibility of the whole gang of federal
officers [as they were called] was found fault with.
He considered the power of impeachment that was pre-
tended to be given in some instances was mere show and
mockery.
511. It was insisted, if we must adopt a Constitution,
ceding away such vast powers, expressed and implied,
and so fraught with danger to the liberties of the people,
it ought at least to be guarded by a bill of rights ; that, in
all free governments, and in the estimation of all men
attached to liberty, there were certain rights inalienable
they could not be guarded with too much caution.
Among these were the liberty of speech and of the press :
what security have we that these sacred privileges shall
not be invaded ? Congress might think it necessary, to
carry into effect the given powers, to silence the clamors
and censures of the people ; and, if they meditated views
of LAWLESS AMBITION, they certainly will so think.
What, then, will become of liberty of speech and of the
press ?
“ Several objections of a minor character were urged,
such as, —
661. The ambiguity with which the directions for pub-
lishing the proceedings of congress was expressed, &c.
62. That the 9th section of the 1st article, professing
to set out restrictions upon the power of congress, gave
29
338. OBSERVATIONS OF PATRICK HENRY.
y
them, by irresistible implication, the sovereign power
over all subjects not excepted, and thus enlarged the
constructive power ad infinitum.
63. That .congress had the power of involving the
Southern States in all the horrors which would result
from the total emancipation of their slaves ;. and that the
Northern States, uninterested in the consequences of such an
act, had a controlling majority which possessed the power,
and would not probably want the inclination, to effect it.
664. That the pay of the members was to be fixed by
themselves."
He made these, together with many other ob-
jections, and, in reply to Mr. Madison and Mr.
Corbin, who said the “Constitution was of a
mixed nature; " " it is in a manner unprecedent-
ed; we cannot find one express example in the ex-
perience of the world ; it stands by itself; in some
respects it is a government of a federal nature; in
others it is of a consolidated nature ; " "it was a
representative federal government, as contradistin-
guished from a confederation," he said, -
6 This government is so new it wants a name! I
wish its other novelties were as harmless as this. We
are told, however, that, collectively taken, it is without
example! that it is national in this part, and federal in
that part, &c. We may be amused, if we please, by a
treatise of political anatomy. In the brain it is national;
the stamina are federal ; some limbs are federal, others
national. The senators are voted for by the State legis-
latures; so far it is federal. Individuals choose the
members of the first branch; here it is national. It is
federal in conferring federal powers, but national in re-
1 Wirt's Life of Patrick Henry, pp. 299–305.
.. OBSERVATIONS OF PATRICK HENRY.
339
al descrips of legile not a touch
tween nare not to wing
27
straining them. It is not to be supported by the States;.
the pockets of the people are to be - searched for its
maintenance. What signifies it to me that you have the
most curious anatomical description of it in its crea-
tion? To all common purposes of legislation it is a
great consolidated government. You have not a right
to legislate but in trivial cases ; you are not to touch
private contracts; you are not to have the right of having
your armies in your own defence; you are not to be
trusted with dealing out justice between man and man.
What shall the States have to do? to take care of the
poor, repair and make highways, erect bridges, and so
on, and so on! Abolish the State legislatures at once,
What purposes should they be continued for? Our
legislature will indeed be a curious spectacle; one hun-.
dred and eighty men marching in solerin farcical pro.
cession, exhibiting å mournful proof of the lost liberties
of their country, without the power of restoring it.
But, sir, we have the consolation, that it is a mixed
government ! that is, it may work sorely in your necks,
but you will have some comfort by. saying that it was a
federal government in its origin!” .
Mr. Henry, however, did not depend on ridicule
to prevent the adoption of the Constitution, and he
acknowledged the talent that was opposed to him.
Mr. Wirt observes, before this Mr. Henry's elo-
quence had appeared in occasional flights, but,
during this discussion, every power of his mind
was put in requisition, and, in the great competi-
tion of talents, Mr. Henry's powers of debate shone
preëminent. It was nearly at the conclusion of
this debate when that celebrated incident oc-
curred, in which the members of the convention
· Wirt's Life of Patrick Henry, p. 306.
OBSERVATIONS OF PATRICK HENRY.
rose without the formality of an adjournment; the
members rushing from their seats with precipita-
tion and confusion, being unable to witness the
scene. The 'time approached when the question
was about to be taken on the adoption of the
Constitution, and there was some doubt what
would be the result. Taking advantage of the ex-
citement that prevailed,
He “ made an appeal, which, in point of sublimity, has
never been surpassed in any age or country of the world.
After describing, in accents which spoke to the soul, and
to which every other bosom deeply responded, the aw-
ful immensity of the question to the present and future
generations, and the thrilling apprehensions with which
he looked to the issue, he passed from the house, from
the earth, and looking, as he said, 'beyond the horizon
that binds mortal eyes,' he pointed, with a countenance
and action that made the blood run back upon the aching
heart, to those celestial beings who were hovering over
the scene, and waiting with anxiety for a decision which
involved the happiness or misery of more than half of
the human race. To those beings — with the same
thrilling look and action --- he had just addressed an
invocation that made every nerve shudder with super-
natural horror, when, lo! a storm at that instant arose,
which shook the whole building, and the spirits whom he
hád called seemed to come at his bidding. Nor did his
eloquence or the storm immediately cease; but, availing
himself of the incident, with a master's art he seemed to
mix in the fight of his ethereal auxiliaries, and, rising on
the wings of the tempest, to seize upon the artillery of
heaven, and direct its fiercest thunders against the heads'
of his adversaries.” 1
1 Wirt's Life of Patrick Henry, p. 313.
OBSERVATIONS OF PATRICK HENRY.
341
" But all his efforts were in vain. Either the justice of
the opposing cause, or the power of his adversaries, or
the prejudged opinions or instructions of the members,
rendered his reasoning and his eloquence equally una-
vailing. Out of a house of 168 members, the ratification
was carried by a majority of 10."?
He closed his last speech with the following
remarks:
“I beg pardon of this house for taking up more time
than came to my share; and I thank them for the pa-
tience and polite attention with which I have been heard.
If I be in a minority, I shall have the painful sensations
which arise from the conviction of being overpowered in
á good cause. Yet I will be, a peaceable citizen! My
head, my hand, and my heart shall be free to retrieve
the loss of liberty, and remove the defects of that system
in a constitutional way. I wish not to go to violence,
but will wait with hopes that the spirit which predomi-
nated in the Revolution is not yet gone, nor the cause of
those who are attached to the Revolution yet lost. I
shall, therefore, patiently wait, in expectation of seeing
that government changed, so as to be compatible with the
safety, liberty, and happiness of the people.” 2.
If Mr. Henry had lived in these days, and seen
the subserviency of all classes of people to the
slave power, we cannot but suppose he would
· have thought the free spirit which pervaded the
land in the days of our Revolution had entirely
left: us, and that our people had become too de-
based to be reckoned among free nations. This
power, as we have seen, early began to show it-
O
-1 Wirt's Life of Patrick Henry, p. 314.
? Idem, p. 314.
29*
342
OBSERVATIONS OF, PATRICK HENRY.
self, and had its influence even over Mr. Henry ;
and, while he and the Virginia convention were
exerting themselves to secure liberty to their own
race, the principles of the revolution had already
been so far lost upon them that they were then
willing to engraft the system of slavery upon the
country, as will be perceived by the resolutions
they proposed. It will be noticed, however, that
these amendments, that Virginia proposed, secured
to the individual “freeman” nearly all the rights
for which Mr. Henry had so powerfully contended,
and probably it was through his influence they
were brought about. We shall soon see how
those amendments were treated by the congress
who took thein under consideration, and what
amendments were proposed and adopted by them.
Mr. Henry, it would appear, had perfect confi-
dence in the power of the Anglo-Saxon race for
self-government; but, for some reason or other,
he did not have the same confidence in the Afri-
can race : why it was so we are not able to say,
unless it arose from early education. We all
know how hard it is to throw off the impressions
of our childhood, and how difficult it is to suppose
that any practices to which we have been accus-.
tomed are wrong, let them be of what nature they
may; and it is to this alone we can ascribe the
course Mr. Henry took on the subject of slavery.
It is difficult to explain how a man so conscien-
tious, and so jealous of his own and others' rights,
when those others were not connected with the
African race, could take such an exception to this
OBSERVATIONS
PATRICK HENRY.
people, and particularly when he lamented with so
much feeling the cruelties practised upon them in
the operation of the slave-trade. We can account
for it in no other way than that he let his selfish-
ness get the better of his judgment, or, that the early
habits of his youth, and of those around him, and
the assertion so falsely and yet so perseveringly
made, that the negro, if free, would be a savage,
or that he could not take care of himself, or that
the general liberty of the country would be en-
dangered, had such a powerful hold on his mind
he could not be convinced to the contrary by his
own better thoughts, or by the suggestions of
others.
CHAPTER XIII.
EXTRACTS FROM PROCEEDINGS OF CONGRESS ON THE
ADOPTION OF THE AMENDMENTS.
The following extracts were taken from the
Massachusetts Centinel, published in 1789 and
1790. They comprise some observations made by
· Washington on his accession to the presidency,
the views of the Constitution held by some of the
courts, and the proceedings of congress on the
subject of the amendments.
It will be perceived the judges of the courts of
New York- and Pennsylvania referred directly to
the preamble of the Constitution as the basis on
which the government' was to be founded, and
they refer to it as with jealous care; and one of
them reminds the distinguished man who was to
take charge of the government that such was the
view they should take of the purpose for which
the new Constitution was formed.
Washington acknowledges the principle, and
says "he should feel himself singularly happy in
contributing to realize the glorious work.” And
yet how has that “glorious work” been realized ?
Has justice, the general welfare, the liberty of
themselves, or their posterity, been realized ? or is.
>
PROCEEDINGS OF CONGRESS.
345
.
S
1
there not at this present time as many, if not ·
more, absolute. slaves in the country than there
were freemen then? Instead of slavery being con-
sidered a curse, as it should be, the attempt
has been made to make us believe it was a bles-
sing, im a god, to which all must bow down, or
else be crushed beneath the wheels of the aveng-
ing deity. Can any man expect or dare hope for
an office, of either trust or emolument, under our
government, without first acknowledging the su-
premacy of this inexorable god ? Must they not
cringe and kiss his toe before they can be taken
into favor ? and then, forsooth, when this is done,
they may be very devils, and they are changed
into angels of light, deserving the highest consid-
eration and the rewards of the highest honėsty
and intellect; or, at least, they must openly and
publicly denounce all those who call his authority
in question, and consider them as outcasts of so-
ciety, whom to insult and treat with contumely
is but giving them their just deserts. Such is the
“ glorious results" to which our free Constitution
has brought us, or it is endeavored to bring us.
But, to return to the proceedings of congress on
the amendments, it will be perceived Mr. Madison
introduced, probably not without consultation, a
series of resolutions for their consideration. It
will be borne in mind Mr. Madison was a Virgin-
ian, and was a member of the convention of Vir-
ginia which adopted the Constitution and recom-
.
1 Mr. George-McDuffie's Message to the legislature of South
Carolina,
346
PROCEEDINGS OF CONGRESS ON THE
mended the amendments that have been quoted
in a former part of this work, as a part of the
proceedings of that convention, and that, in the
resolations he now offers for the consideration of
congress, he dares not, or, from his own sense of
justice, he will not, introduce the word “free-
man," in contradistinction to any other class of
men, in any one of the amendments he introduces
for their consideration ; and, although we have
not been able to get a report of all the speeches
made on these amendments yet, in those we have
seen, there is not a word in favor of making any
distinction among the various classes of men in
the country, for whose “ general welfare " the
government was established.” In this instance
it cannot be said that the word “freeman" was
overlooked or forgotten. Two States, to say noth-
ing of South Carolina and Georgia, had brought
forward their claim to have it incorporated in the
Constitution ; but, when brought before the rep-
resentatives of the people, it received no counte-
nance. They were well aware of the damning
disgrace it would bring upon their deliberations,
and they cast it out as evil; or, whatever may
have been their considerations, this word appears
not on the record ; and, by its not appearing there,
when so directly suggested to the minds of the
delegates in congress by the States above men-
tioned, together with the counter resolutions made
by Massachusetts, and made, too, as was said in
the convention' of Massachusetts, for the very
purpose of having an effect upon the individual in,
ADOPTION OF THE AMENDMENTS.
347
slavery, and while the latter resolutions were in spir-
it adopted, and by adopting the principles of the
others with this word “freeman" stricken out,
thereby making the principles embodied in each
of them to have a universal extension, we can-
not but come to the conclusion that the American
people did not mean to have that system continued;
but, on the contrary, they prepared the way for its
entire extinction.
In order', therefore, to throw all the light in our
power on this subject, we have concluded to copy
the whole of the amendments that were introduced
before congress, as reported in the Massachusetts
Centinel of 1789–90, and also as they were passed
by that body. We do it because we think them all-
important to a candid decision of the several points
under consideration; and, if we find this word
- freeman," in contradistinction to other classes of
persons, not made use of, or even not entertained,
by the representatives of the people, we think our
points are proved; for the introduction of it in the
amendments proposed by Virginia and North Car-
olina shows what they thought would be the effect
of the Constitution and of their amendments with-
out this word. We therefore think it not only
fair, but right, to suppose, if it is not used, the
States that are in the Union fully acknowledged
the principles contained in these amendments, and
that they are of universal obligation; and we can-
not but suppose our Supreme Court would thus
decide; and, as a consequence, slavery would be
no more ; and the colored man will see the door
348
PROCEEDINGS OF CONGRESS ON THE
opened by which he can enter the temple of free-
dom; the only word we can here say to him is,
let him be careful, when he has entered, how he
deports himself in it.
.
Mr. Madison, after previous notice, introduced
to the house of representatives (June 12, 1789)
the following resolutions, for the consideration of
the house, to be adopted as amendments to the
Constitution:
• Resolved, That the following amendments ought to
be proposed by congress to the legislatures of the States,
to become, if ratified by three fourths thereof, part of the
Constitution of the United States : :
“ First, that there be prefixed to the Constitution a
declaration that all power is originally vested in, and
consequently derived from, the people ;
“That government is instituted, and ought to be exer-
cised, for the benefit of the people ; which consists in the
enjoyment of life and liberty, with the right of acquiring
- and using property, and generally of pursuing and ob-
taining happiness and safety;
6 That the people have an indubitable, inalienable,
and indefeasible right to reform or change their govern-
ment, whenever it is found adverse or inadequate to the
purposes of its institution.
,“ Secondly, that, in article 1, section 2, clause three,
these words shall be struck out, to wit: “ The number of
representatives shall not exceed thirty thousand,' &c. ;
[this amendment relating simply to the number of repre-
sentatives.]
“ Thirdly, that, in article 1, section 6, clause one, there
be added to the end of the first sentence these words, to
wit: “But no law, varying the compensation last ascer-
ADOPTION OF THE AMENDMENTS.
349
tained, shall operate before the next ensuing election of
representatives.'
“Fourthly, that, in article 1, section 9, between the
clauses three and four, be inserted these clauses, to wit:
" The civil rights of none shall be abridged on ac-
count of religious belief or worship; nor shall any na-
tional religion be established; nor shall the full and equal
rights of conscience, in any manner, nor on any pretext,
be infringed.
««The people shall not be deprived or abridged of the
right to speak, to write, to publish their sentiments; and
the freedom of the press, as one of the great bulwarks of
liberty, shall be inviolable.
66. The people shall not be restrained from peaceably
assembling and consulting for their common good, nor.
from applying to the legislature, by petition or remon-
strance, for redress of grievances.
6. The right of the people to keep and bear arms
shall not be infringed; a well-armed and well-regulated
militia being the best security for a free country. But
no person, religiously scrupulous of bearing arms, shall
be obliged to render military service in person.
56. No soldier shall, in time of peace, be quartered in
any house, without the consent of the owners; nor at
any time, but in the manner warranted by law.
66. No person shall be subject, except in case of im.
peachment, to more than one punishment, or one trial,
for the same offence; nor shall be compelled to be a .
witness against himself; nor be deprived of life, liberty,
or property, without due process of law; nor be obliged
to relinquish his property, when it may be necessary for
public use, without a just compensation.
“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel or unusual punishments inflicted.
66. The right of the people to be secure in their per-
30
350
PROCEEDINGS OF CONGRESS ON THE
sons, their houses, their papers, and their other property,
from all unreasonable searches and seizures, shall not be
violated by warrants issued without probable cause, sup-
ported by oath or affirmation, or not particularly describ-
ing the places to be searched, or the persons or things to
be seized.
- In all criminal prosecutions, the criminal shall enjoy
the right of a speedy and public trial; to be informed of
the cause and nature of the accusation; to be confronted
by his accusers and the witnesses against him; to have a
compulsory process for obtaining witnesses in his favor ;
and to have the assistance of counsel in his defence. .
66. The exceptions here or elsewhere in the Constitution,
made in favor of particular rights, shall not be so con-
strued as to diminish the just importance of other rights
retained by the people, or as to enlarge the powers dele-
gated by the Constitution, but either as actual limitation
of such powers, or as inserted merely for greater caution.'
6 Fifthly, that, in article 1, section 10, between clauses
one and two, be inserted this clause :
"No State shall violate equal rights of conscience, or
the freedom of the press, or the trial by jury in criminal
cases.
“Sixthly, that in article 3, section 2, to be annexed to
clause two these words, to wit :
"But no appeal to such courts will be allowed when
the value in controversy shall not amount to - dollars;
nor shall any fact triable by jury, according to the course
of common law, be otherwise reëxamined than consists
with the principles of common law.'
“Seventhly, that, in article 3, section 2, the clause to
strike out, and insert the clauses following:
6. In the trial of all crimes (except in cases of impeach-
ment, and cases arising in the land and naval forces, or
in the militia when in actual service in time of war or
ADOPTION OF THE AMENDMENTS.'
351
public danger) there shall be an impartial jury of free-
holders of the vicinage, with the requisite of unanimity
for conviction, of the right of challenge, and other accus-
tomed requisites; and, in all crimes punishable with loss
of life or member, presentment or indictment by a grand
jury shall be an essential preliminary, provided that, in
cases of crimes committed within any county which may
be in the possession of the enemy, or in which a general
insurrection may prevail, the trial may by law be au-
thorized in some other county in the same State, as near
as may be to the seat of the offence.'
.
as article 7, the clauses following, to wit:
" The powers delegated by this Constitution, and
appropriated to the departments to which they are re-
spectively distributed; so that the legislature shall never
exercise the powers vested in the executive or judicial,
nor the executive exercise the powers vested in the legis-
lative or judicial, nor the judicial exercise the powers
vested in the legislative or executive departments.
66. The powers not delegated by this Constitution, nor
prohibited by the States, are reserved to the States re-
spectively.'
“Ninthly, that article 7 be numbered as article 8.”
After the amendments had been some time be-
fore the committee of the whole house, Mr. Ames
moved they, together with the amendments pro-
posed by the several States, be referred to a special
committee; and Messrs. Gilman, Goodhue, Sher-
man, Benson, Boudinot, Clymer, Vining, Gall,
Madison, Bush, Baldwin, were appointed on the
21st of July, 1789. On the 28th of the same
month, Mr. Vining, from the committee, reported
the following, to wit:
1
11
352
PROCEEDINGS OF CONGRESS ON THE
“In the introductory paragraph, before the words we
the people'insert "government being intended for the
benefit of the people, and the rightful establishment
thereof being derived from their authority alone.
" Article 1, section 6, between the words United
States' and shall in all cases,' strike out “they,' and
insert "but no law varying the compensation shall take
effect until an election of representatives shall have in-
tervened. The members --'
“ Article 1, section 9, between paragraph two and
three, insert "No religion shall be established by law, nor.
shall the equal rights of conscience be infringed.
66. The freedom of speech and of the press, and the
right of the people peaceably to assemble, and consult
for the common good, and to apply to the government
for redress of grievances, shall not be infringed.
" A well-regulated militia, composed of the body of
the people, being the best security of a free state, the
right of the people to keep and bear arms shall not be
infringed; but no person religiously scrupulous shall be.
compelled to bear arms.
“! No soldier shall, in time of peace, be quartered in
any house, without the consent of the owner; nor in
time of war, but in manner prescribed by law.
6. No person shall be subject, except in case of im-
peachment, to more than one trial nor one punishment
for the same offence, nor shall be compelled, to be wii-
ness against himself, nor bé deprived of life, liberty, or
property, without due process of law; nor shall private
property be taken for public use, without just compen-
sation.
6. Excessive bail shall not be required, nor excessive
fines imposed, nor cruel or unusual punishments inflicted.'
“Article 1, section 2, paragraph three, strike out all
between the words direct' and 'and until such, and,
ADOPTION OF THE AMENDMENTS.
353
instead thereof, insert After the first enumeration, there
shall be one for every thirty thousand, until the number
shall amount to one hundred ; after which the proportion
shall be so regulated by congress, that the number of
representatives shall never be less than one hundred, nor
more than one hundred and seventy-five, but each State
shall have at least one representative.
6. The right of the people to be secure in their per- ·
sons, papers, and effects, shall not be violated by war-
rants issuing without probable cause, supported by oath
or affirmation; and not then without particularly describ-
ing the place to be searched, and the person or thing to
be seized.
“ The enumeration in this Constitution of certain
rights shall not be construed to deny or disparage others
retained by the people.'
66 Article 1, section 10, between the first and second
paragraphs, insert, No Slate shall infringe the equal
rights of conscience, nor the freedom of speech or of the
press, nor of the right of trial by jury in criminal cases.'
6 Article 3, section 2, add to the second part, ‘But no
appeal to such court shall be allowed, where the value
in controversy shall not amount to over a thousand dol.
lars; nor shall any fact triable by a jury according to
the course of common law be otherwise reëxamined than
according to rules of cornmon law.
5 Article 3, section 2, strike out the whole of the
third paragraph, and insert, “ In all criminal prosecutions
the accused shall enjoy the right to a speedy and public
trial; to be informed of the nature and cause of the accu..
sation ; to be confronted with the witnesses against him ;
to have compulsory processes for obtaining witnesses in
his favor, and to have assistance of council in his
defence.
“6 The trial of all crimes (except in cases of impeach-
30*
354
PROCEEDINGS OF CONGRESS ON THE
ment, and in cases arising in the land and naval forces,
or in the militia, when in actual service in time of war
or public danger) shall be an impartial jury of free-
holders of the vicinage, with the requisite unanimity for
conviction, the right of challenge, and other accustomed
requisites; and no person shall be held for a capital, or
other infamous crime, unless on a presentment or indict-
ment by a grand jury; but, if a crime be committed in a
place in possession of an enemy, or in which an insur-
rection may prevail, the trial and indictment may by
law be authorized in some other place not within the
State ; and, if it be committed within a place not within a
State, the indictment and trial may be in such place or
places as the law may have directed. .
6. In suits at common law, the right of trial by jury
shall be preserved." ;
“Immediately after article 6, the following be inserted
as article 7:
«• The powers delegated by this Constitution to the
government of the United States shall be exercised as
therein appropriated, so that the legislature shall not
exercise the power vested in the executive and the judi-
cial, nor the executive the powers vested in the legisla-
tive or the judicial, nor the judicial the powers vested in
the legislative or executive.
6. The powers not delegated by this Constitution, nor
prohibited by the States, are reserved to the States
respectively.
6 Article 7 to be made article 8."
. On the 14th of August, 1789, " The amend-
ments, as reported by the committee, were taken
up to be acted upon." The first amendment being
read, -
« Mr. Gerry objected to its phraseology, as it might
SS
ADOPTION OF THE AMENDMENTS.
: 355
imply that all governments were established on this
principle, and therefore, in point of fact, it was not true :
the most of the governments of ancient and modern
times were calculated on different principles. They had
chiefly originated in fraud and force, and were designed
for the purpose of oppression and personal ambition.
He wished to have nothing go out from this body as a
maxim which was false in fact, or which was not clear
in its construction. He moved to alter the clause by in-
serting the words of right."
..“ This motion was negatived.
6. Mr. Tucker objected to any amendments being made
to the preamble to the Constitution, and the object was
only to amend the Constitution. The preamble was no
more the subject of amendment than the letter of the
president annexed to the Constitution.
“Mr. Smith, (S.C.) in answer to Mr. Tucker, showed
that this amendment had been recommended by three
States, and that it was proper it should be made.
“Mr. Tucker replied, he was not opposed to the prin-
ciple, but thought this was an improper place to express
it: it could be inserted with propriety in a bill of rights,
if one should be agreed on.
“ Others objected to the whole clause, as it was un."
necessary, since the words we the people' contained
.
“Mr. Sherman observed, that, if the Constitution had
been a grant from another power, it would be proper to
express this principle ; but, as the right expressed in the
amendment was natural and inherent in the people, it is
unnecessary to give any ground on which they made
their Constitution. It was the act of their own sovereign
. will. It was also said it would injure the preamble."
Here the representatives acknowledge the in
356.
PROCEEDINGS OF CONGRESS ON THE
44
alienable rights of mankind, and the very form of
the expression made use of, it appears, was designed
to make that acknowledgment, and to prevent
congress from ever becoming, like foreign govern-
ments, an engine for power and oppression ; that
is, this government should not interfere with any
man's inalienable rights, and that they should in
no case prevent the freedom of speech, of the press,
of conscience, of the right of petition, or of peacea-
bly assembling together for discussion, &c. and
that any laws which they should at any time see
fit to pass taking away these rights, such laws (if
they could be called such) would be null and
void, and of no binding force on any one. It being
presumed the “general welfare," and the liberty
of the country, or of the individual, could not be
gained in any instance by violating these rights, or
that these benefits should not be attempted to be
gained by violating individual liberty, or that they
should not be guilty of an evil act, that a good
might be derived, consequently all acts of our
southern legislatures, preventing the colored people
peaceably assembling to discuss their grievances,
must be null and void. But to return:
“Mr. Madison contended for the amendment. He saw
no difficulty in the amendment with the preamble without
injuring the propriety or sense of the paragraph. Though
it was indisputable that the principle was on all hands
acknowledged, and could of itself derive no force from
expressing it, yet he thought it prudent to insert it, as it
had been recommended by three respectable States...
“ The amendment was adopted.”
ADOPTION OF THE AMENDMENTS.
357
Second amendment referred to the number of rep-
resentatives. Mr. Ames wanted one for every 40,000.
6 Article 1, section 9, between paragraphs two and
three, 'No religion shall be established by law, nor shall
the equal rights of conscience be infringed."" ;
Mr. Livermoré moved to strike out this clause,
and to substitute one to the following effect :
“The congress shall make no law touching re-
ligion or the rights of conscience." He observed,
though the sense of both provisions was the same,
yet the former might seem to wear an ill face, and
was subject to misconstruction.
The question on this motion was carried.
It would appear Mr. Livermore would not admit
congress held any power to establish any religious
sect; that, from the very nature of the thing, they
did not; and, as the form of the expression, as re-
ported by the committee, might imply they had
that power, he moved it be altered; and, under
that impression, it was accordingly altered. It will
be observed the understanding among the mem-
bers of this congress was, that man possessed. cer-
tain inalienable rights, and the great care mani-
fested that it should not be in the power of con-
gress, in making laws for the government of the
country, to take away these rights; and, lest it
might be thought at times they could so do, these
amendments were proposed to prevent them. The
assumption was, man in this country was and
should be free ; and, if in his freedom he violated
the rights of no one else, he should be protected
in his freedom. Let it be borne in mind the peo-
11
PROCEEDINGS OF CONGRESS ON THE
ple of the country are talking, not the people of -
the States; and, if the country protects the rights
of the individual, certainly the States cannot take
them away, much less can individuals : the lesser
power cannot be greater than the whole.
“Fifth amendment: “The freedom of speech and of
the press, and of the right of the people peaceably to
assemble and consult for their common good, and to
apply to the government for redress of grievances, shall
not be infringed.""
Mr. Tucker moved to insert between the words.
“common good" "and to," in this paragraph,
the words, “to instruct their representatives.”
5. On this motion a long debate ensued. Messrs. Hartly,
Clymer, Sherman, Gerry, Madison, Smith, (S. C.) Stone,
and others, spoke on the subject. All spoke against it,
saving Mr. Gerry : the motion was negatived by a large
majority. Mr. Sherman said he was there to consult the
common good of the whole, and was the servant of the
people at large.
“Mr. Stone said instead of being a representative
government it would be a singular kind of democracy.
."Mr. Madison said it had been observed that the peo-
ple are sovereign. True ; but who are the people? Is
every small district the people ?. And do the inhabitants
of this district express the voice of the people when they
may not be the thousandth part, and although their in-
structions may contradict the sense of the whole people
besides ?
66 The 6th and 7th amendments were agreed to.
“In the 8th, on motion of Mr. Lawrence, after the
· words nor shall’ these words were inserted : ' in any
criminal cases.'
ADOPTION OF THE AMENDMENTS.
359
“ The 9th was adopted without any alterations.
"In the 10th, on motion of Mr. Benson, after the words
and effects' these words were inserted : “ against unrea-
sonable searches and seizures."
- The 11th, 12th, 13th, and 14th were agreed to in
“Mr. Gerry introduced a motion on the subject of the
amendments, to this purport : That such amendments to
the Constitution of the United States as have been pro-
posed by the different States, which are not in the report
of the select committee, be referred to the committee of
the whole house, and that those, with the amendments
proposed by that committee, be included in the one
report.
« This motion was seconded by Mr. Sumpter. After
a long debate it was decided in the negative.”
“ August 19th, Mr. Sherman brought forward a motion
for adding the amendments, by way of supplement, to
the Constitution, which was agreed to by more than three
fourths of the members present.
“ The Ist amendment being taken up, on the ques-
tion to agree to the same it was negatived.
66 The ad amendment was laid on the table for further
consideration.
• The 3d amendment was agreed to.
- The 4th amendment, on motion of Mr. Ames, was
altered so as to read, Congress shall make no law estab-
lishing religion, or to prevent the free exercise thereof,
or to infringe the right of conscience.' .
“The 5th amendment was agreed to.
“Mr. Scott objected to the clause in the 6th amend-
ment,- No person religiously scrupulous shall be com-
pelled to bear arms.' He said if this becomes part of
the Constitution, we can neither call upon such persons
for services nor an equivalent: it is attended with fur-
360
PROCEEDINGS OF CONGRESS ON THE
ther difficulties, for you can never depend upon your
militia.
“Mr. Boudinot said that the provision, or something
like it, appeared to be necessary. What dependence
can be placed in men who are conscientious in this
respect? or what justice can there be in compelling men
to bear arms, when, if they are honest men, they would
rather die than use them ?.... I wish, in establishing
this government, we may be careful to let every person
know that we will not interfere with their particular pro-
ſessions. If we strike out this clause, we shall lead
such persons to conclude that we mean to compel then
to bear arms. The words in person’ were added after
the word arms, and the amendment was adopted.
“ The 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th
amendments, without any material alterations,' were
agreed to, as in the committee of the whole. .
“ The 16th, 17th, 18th, and 19th were agreed to
without any essential alterations.
“The 2d amendment was then modified as it now
stands.
“Messrs. Benson, Sherman, and Sedgwick were ap-
pointed a committee to arrange the amendments, and
report to the house, when they were to be submitted to
the State legislatures."
A correspondent of the Centinel remarks, -
“ The business of the amendments has been managed
with great condor and address by those who were friends
of the Constitution, and such as were indifferent to any
amendments. To those the sticklers for alterations are
principally indebted ; for it evidently appears that noth-
ing short of such modification of the Constitution as
would have extracted its essence and energy, would
have satisfied the rigid anti-federalist: it appeared to
ADOPTION OF THE AMENDMENTS.
361
0
every dispassionate person, that the object of some was
so to hack and mutilate the original system as to leave no
conspicuous feature remaining; hence we should have
lost a Constitution framed by our wisest and best charac-
ters, and which a majority of the people have adopted,
and had a plan palmed upon us by men who were not,
and never would have been, chosen by the people for
the purpose of making a constitution. But the principal :
part of the advocates for the amendments appear pretty
well. contented with the report. i
“ The plan of incorporating the amendments being
given up, the identity of the system remains; and if the
amendments, in any future time, should be found to
be unnecessary, superfluous, or absurd, they may be
lopped off as a useless branch of the tree.”
At the present day we do not find them useless,
unnecessary, or superfluous.
A correspondent of August 26th, says, –
-- Nothing can be more ridiculous and inconsistent,
ihan a motion to have laid before congress ALL the
amendments suggested by the several State legislatures,
when it is considered that many of them are entirely
contradictory to others, (especially those about the slave-
trade,) some in favor of tender laws, &c. some local,
some incomprehensible. Besides, it is hard to conceive
how they can be admitted, especially in the senate,
when it is recollected that a majority of the ratifying
States did not wish a single amendment. Some were
recommended as conciliatory, and in the hope,-as beau-
tifully expressed by the president of the United States,
to a late answer to an address, when speaking of the
Constitution as it now stands, -- that its mild, and yet effi-
cient operation, would tend to remove every remaining
apprehension of those with whose opinions it may not
31
362
PROCEEDINGS OF CONGRESS ON THE
entirely coincide, as well as to confirm the hopes of its
numerous friends."
The amendments proposed by this congress, as
it will be perceived, were adopted by the States,
and now constitute a portion of the Constitu-
tion. We will therefore ask, if Virginia, North
and South Carolina, and Georgia adopted them, af-
ter all that had been said upon the subject of slavery,
and after the attempt to incorporate it on the Con-
stitution by the amendments proposed by them had
so signally failed, can it be that slavery is guaran-
teed, or even acknowledged? Or is it not rather
here made evident it is destroyed, if the Constitu-
tion should be carried into effect, and that it is not
even in the power of congress to establish it? and,
if it is not in the power of congress to do it, can it
be possible that a State, or the individuals of a
State, can do it, without violating those inalienable
rights, and that liberty for which the preamble to the
Constitution was adopted to secure, as it expressly
says to maintain these was the object for which the
whole instrument was formed, and which its several
articles go to confirm ? Can a neighbor of mine have
a greater command over my liberty than the ac-
knowledged government of the country? The idea,
it seems to us, is preposterous ; and we cannot
perceive, in any of the foregoing proceedings, the
government of the country have deputized such
power to any one, or have given the liberty of any
class of its citizens in charge to any other, or that
they even have the power of doing it; but, on the
contrary, they are bound to preserve to each indi-
vidual his liberty so far as in their power.
ADOPTION OF THE AMENDMENTS.
363
January 8th, 1796, Gen. Washington, in his in-
augural address delivered before congress, among
other things, observes, —
“ Nor am I less persuaded you will agree with me in
opinion, that there is nothing that can better deserve
your patronage than the promotion of science and litera-
ture. · Knowledge, in every country, is the surest basis
of public happiness.” “Whether this desirable object
will be best promoted by affording aid to seminaries of
learning already established, by the institution of a na-
tional university, or by any other expedients, will be
well worthy a place in the deliberations of the legis-
lature.”
If the legislature could build seminaries for the
general benefit, could they not break up slavery for
the general benefit? is there any difference in
principle ? we see none. In fact, if "knowledge
is the surest basis of public happiness," and as it is
universally acknowledged that the slave must be
kept in a state of ignorance in order to keep him as
a slave, we cannot but perceive that, if the govern-
ment of the United States is to preserve the "pub-
lic happiness, its first duty would be to see that
the slave is instructed, if the States will not do it.
Hon. James Dana, judge of the District Court
of the district of New York, in his first charge
to the first grand inquest convened for that dis-
trict, Feb. 5th, 1790, while speaking of the
operation of the new Constitution, observed, -
“Happy that we may confidently trust it will
answer the inestimable purpose expressed in its
preamble, -'That it will form a more perfect
4
+
364
PROCEEDINGS OF CONGRESS ON THE.
union,'" &c. quoting the whole preamble to the
jury, as if he thought that was the principle on
which the government was to be administered.
In an address, delivered to Gen. Washington
by the judges of the Supreme Court of the State
of Pennsylvania, April 20, 1789, they make use of
this expression :
“And we hope and pray the same Providence will
carry us through the great work (which seems reserved
for you) of establishing justice, insuring domestic tran-
quillity, promoting the general welfare, and securing
liberty and independence to the good people of your
native country to their latest posterity.”
In Washington's answer, he observes, —
“He should feel himself singularly happy in contrib-
uting to the glorious work."
Samuel Adams, in his address to the legislature
of Massachusetts, on his induction into the office of
lieutenant-governor of the State of Massachusetts,
made use of this expression : .
“If it be not improper on this occasion, may I beg
leave to express a devout and fervent wish that gracious
Heaven may quiet the public councils of the great con-
federate republic which compose it; so that the people
may be highly respected and prosperous in their affairs
abroad, and enjoy at home that tranquillity of mind
which results from a well-grounded confidence that their
personal and domestic rights are secure.”
The foregoing extracts, we think, prove very
clearly our fourth proposition, namely, that the
people, by the adoption of these amendments in the
ADOPTION OF THE AMENDMENTS.
365
form they did, caused the liberty of every individual
to be secure; or, in the words of the proposition,
:"the determination of the people no constitution
should be formed that put the liberty of the indi-
vidual in danger.” This is the most important; :
the other two propositions of importance are, in
fact, involved in this one; for, if this is true, the
others must be. But we will proceed yet further.
31*
CHAPTER XIV. .
THE PROCEEDINGS OF CONGRESS ON THE PRESENT-
ATION OF THE PETITION BY THE SOCIETY. OT
QUAKERS FOR THE ABOLITION or SLAVERY.
The following observations were made in con-
gress on the proposition to commit the memorial
transmitted to the house of representatives, 1790,
by the society of Quakers, on the subject of slave-
ry. It is astonishing to find how analogous are the
assertions made in those days to those made use
of at the present time. While assertions are now
(D
off discussion, one cannot but be reminded of the
old adage, “ The least said the soonest mended,"
this question of slavery; ay, even by those at the
North who do not have any great desire to disturb
this system. In this discussion, observe the ad-
dress of Mr. Madison in, wishing it given to a
committee, not to be reported on, but that it might
sleep; and how often has the subject, since that
day, taken the same course, and the “tomb of
the Capulets" been a safe resting place for all
such meníorials till within a short time, when it
would seem they had risen from their grave, and,
by their resurrection, are enlightening the world!
ITO
WIU
11
FIRST ABOLITION PETITION.
367
307
We trust the stone has been rolled away from the
door of the sepulchre, never more to close it; and
man, disenthralled from the worse than death that
has bound him to the car of a lordly master, will
be able to walk forth in newness of life, rendering
service to him only to whom service inay be due.
As these proceedings were the first that took place
after the adoption of the Constitution, we have
concluded to copy them, that it may be seen what
were the ideas advanced at that day, and also as
they show distinctly that it was avowed and ac- ,
knowledged by Mr. Madison that congress did
have power over the subject of slavery. Whether, as
a member of the original convention, he was wil-
ling to give congress power over the subject; or
whether he was convinced, by the arguments
urged by Mr. Henry in the convention of Virginia,
that the power, by implication, was certainly given;
or whether he found, in the necessary action of
congress, it must be so; or, after the adoption of
the amendments he could not but perceive such
was the fact, — we will not determine. In the lan-
guage he uses on the subject, in the quotations that
follow, it will be perceived he is very decided ;
and that, in his opinion, congress has undoubt-
ed power over the subject, though the delegates
from South Carolina and Georgia attempted to
advance the idea that congress had not. Not on-
ly Mr. Madison, but Mr. Gerry and others, main-
tained the contrary, and went so far as to tell the
Southern members their speeches had no argu-
.ments in them. It seemed a self-evident proposi-
368
PROCEEDINGS OF CONGRESS ON THE
tion with Mr. Gerry, that congress had power
over the subject. Mr. Boudinot thought congress
had done wrong in not exacting the ten dollars'
duty on the importation of slaves, as it would en-
courage persons to put their capital in this unre-
stricted trade, in preference to those articles on
which duty was paid. As no answer is reported
to have been made to Mr. Madison's, Mr. Gerry's,
or Mr. Boudinot's arguments, it is fair to conclude
they were not answered; and the memorial was
not acted upon, not because it was not constitu-
tional to have carried out the ideas contained in
it, but on account of the "begging " and "entreat-
ing” of the southern members, and their represent-
ing the dangers to which they imagined they might
be exposed, the people of the North gave way.
Mr. Gerry went into a calculation of what the
slaves might then be worth; and the value he put
upon them was ten millions of dollars ; and he
thought, though he said he would make no proposi-
tion of the kind, that congress might take the
western lands for the purpose of paying for their
liberty. While such a course might, at the present
day, be adopted, and perhaps many in our land
would gladly do it, provided the disgrace which
slavery is bringing upon it could be blotted out,
and the slave could be at once relieved from his
chains; and because the North itself has more or
less participated in the traffic, and has been the
seller of the stolen property, and has received the
wages of its iniquity, and therefore, in justice, if
it now cause the purchaser to give it up, it
FIRST ABOLITION PETITION.
369
should help bear the loss, if any there should
be; — while, we say, there is this class of persons,
there are others who deny that any remuneration
should be given any one for acting honestly, and
doing that which is just and equal; and who say
the slaveholder has already received more than his
just remuneration; and, as the slave has so long
worked for him, it is no more than right the mas-
ter should pay the debt by working for the slave in
turn. There are others, again, who say there is
no real property in slaves at all; that the planter
would be richer without than with thern; that
only as they are bought and sold, and capable of
being transferred, or are let out for hire, are they
of any pecuniary value ; that the man is more
willing to work without shackles than with them;
that he is more ready to exert his inventive genius,
and is really of more value, as a freeman than as
a slave. Not, however, on the principle lately
promulgated, - because more can be wring out of
the freeman by any peculiar oppression exercised
towards the employed by the employer, — but be-
cause the man feels he is a freeinan, and that what
he does is, at least in a measure, his own choice ;
or that, by exerting his best powers, it may enable
him to raise himself from penury and from want;
whereas the slave has no such stimulus, and
consequently neglects to do what he might with
convenience. Having the doors for promotion
now shut against him, he has no object before
him, and therefore will not work more than he
can help; conséquently, all that would be given
PROCEEDINGS
ONGRESS ON THE
.
the master would be a gratuity; and, from this
cause alone, the master should receive no compen- .
sation. And, further, slaveholding is a sin, both
against God and man, and should at once be re-
pented of and relinquished ; and a man should no
more be guilty of it than he would be guilty of
theft, robbery, or murder.
But, if we are correct in the position we have
assumed in this work, it matters not what may be
the views now held on the subject of remunera-
tion, as our fathers have settled it in the Constitu-
tion, by giving to every man an opportunity to ob-
tain his freedom by civil process, and without
compensation, his freedom being his inalienable
right.
But to return to our quotations :
66 Mr. Tucker said he considered the memorial to be
so glaring an interference with the Constitution, that he
had hoped the house would not have given so much
sorry the society had discovered so little prudence in
their memorial as to wish that congress would intermed-
dle in the internal regulations of the particular States.
He hoped the petition would not be committed, as it
would operate directly against the interest of those it
was designed to benefit. This is a business that would
be attended with the most serious consequences : it may
end in the subversion of the government, being a direct
attack on the rights and property of the Southern States.
He then inquired what satisfaction was to be made to the
proprietors of slaves. He believed it was not in the
power of the States to make indemnification for the loss, ,
that would attend emancipation. He reprobated the
FIRST ABOLITION PETITION.
371
interposition of the society, and denied they possessed
any more humanity than other denominations.”
* Mr. Gerry replied to Mr. Tucker, and desired the
gentleman to point out any part of the memorial which
proposed the legislature should infringe on the Constitu-
tion. For his part, he had heard nothing read that had
such a tendency. Its only object was, that congress
would exert their constitutional authority to abate the
horrors of slavery, so far as they could. He hoped the
petition would be committed." . . .
“Mr. Burke reprobated the commitment as subversive
of the Constitution, as sounding an alarm, and blowing
the trumpet of sedition in the Southern States. He
should oppose the business totally, and, if chosen on the
committee, he should decline serving."
“ Mr. Scott was in favor of its commitment."
“Mr. Jackson was opposed to it, and painted in strong
colors the alarming consequences to be apprehended
from taking up the business, -- revolt, insurrection, and
devastation, —and concluded by an observation similar
to Mr. Burke's.”
“Mr. Sherman could see no difficulty in committing
· the memorial : the committee may bring in such a report
as may prove satisfactory on all sides."
“Mr. Baldwin referred to the principles of accommo-
dation, which prevailed at the time of forming the gov-
ernment. Those mutual concessions that then took place
gave us a constitution which was to secure the peace and
the equal rights and properties of the severał States ;
and, to prevent all infractions of rights in this particular
instance, they precluded themselves, by an express stip-
ulation, from all interposition in the slave-trade. Con-
gress are not called upon to declare their sentiments upon
this occasion ; they cannot constitutionally interfere in
the business. He deprecated the consequence of such a
372
PROCEEDINGS OF CONGRESS ON THE
measure in very forcible terms, and hoped the house
would proceed no further in the investigation of the
subject."
“Mr. Smith, (S. C.) recurring to the memorial, ob-
served that congress could not constitutionally interfere
in the business, upon the prayer of the memorialist, as
that went to the entire abolition of slavery: it could not,
therefore, with propriety, be referred to a committee.
“In the Southern States, difficulties on this account
had arisen in respect to the ratification of the Constitu-
tion; and, except their apprehensions on this head had
been dissipated by their property being secured to them
and guaranteed 10 them by the Constitution itself, they
never could have adopted it. He then depicted the mis-
eries that would result from the interference of congress
in the southern governments. He asserted, as his opin-
ion, that, if there were no slaves in the Southern States,
they would be entirely depopulated : from the nature of
the country, it could not be cultivated without them.
Their proprietors are persons of as much humanity as
the inhabitants of any part of the continent: they are as
conspicuous for their morals as any of their neighbors.
“ He then asserted that the Quakers are a society not
known to our laws; that they stand in exactly the same
situation with other religious societies: their memorial
relates to a matter in which they are no more interested
than any sect whatever; and it therefore must be con-
sidered in the light of advice: and is it customary to
refer a piece of advice to a committee ? He then con-
trasted this memorial with one that might be presented
from the sect called Shaking Quakers, whose principles
and practices are represented in a very exceptionable
point of light, and asked whether congress would pay
any attention to such a memorial. He hoped the memo-
rial would not be committed.”
FIRST ABOLITION PETITION.
373
If Mr. Smith really thought that the interference
of congress on the subject of slavery. was unconsti-
tutional, when so good an opportunity was offered,
why did he not dwell upon this point, — the strong-
est point he could have urged ? and, if he could
have shown it was not in their power to interfere,
there would have been an end to the subject.
But, instead of stopping on what he undoubtedly
knew was an untenable point, he talks about the
of the Shaking Quakers.
“Mr. Page was in favor of the commitment. He
hoped that the benevolent designs of the respectable
memorialists would not be frustrated at the threshold, so
far as to preclude a fair discussion of the prayer of their
tion of slavery. They only request that such measures
may be taken, consistent with the Constitution, as may
finally issue in the total abolition of the slave-trade. He
could not conceive that the apprehensions entertained by
the gentlemen from Georgia and South Carolina were
well founded, as they respected the proposed interference
of congress.”
“Mr. Madison observed it was his opinion, yesterday,
that the best way to proceed in the business was to com-
mit the memorial, without debate on the subject. From
what has taken place, he was more convinced of the
propriety of the idea. But, as the business has engaged
the attention of many members, and much has been said
by gentlemer, he would offer a few observations for the
consideration of the house. He then went into a critical
review of the circumstances respecting the adoption of
the Constitution, the ideas upon the limitation of the
powers of congress to interfere in the regulation of com-
32
74
PROCEEDINGS OF CONGRESS ON THE
merce in slaves, and showing they were not precluded
regulate the mode in which every species of business
shall be transacted. He adverted to the western coun-
try, and the cession of Georgia, in which congress has
CERTAINLY the power to REGULATE the subject of slavery;
which shows that gentlemen are MISTAKEN in supposing
that congress cannot constitutionally interfere in the
business, in any degree whatever. He was in favor
of committing the petition, and justified the measure by
“Mr. Gerry entered into a justification of the inter-
ference of congress, as being fully compatible with the
Constitution. He descanted on the miseries, to which
the Africans are subjected by this traffic, and said he
never contemplated this subject without reflecting what
, his own feelings would be, in case himself, his children,
or friends, were placed in the same deplorable circum-
stances. He then adverted to the flagrant acts of cruelty
which are committed in carrying on that traffic, and
asked whether it can be supposed that congress has no
power to prevent such transactions as far as possible..
He then referred to the Constitution, and pointed out the
restrictions laid on the general government respecting
the importation of slaves. It is not, he presumed, in the
contemplation of any gentleman in this house to violate
that part of the Constitution ; but that we have a right to
regulate this business is as clear as that we have any
rights whatever; nor has the contrary been shown by
any person who has spoken on the occasion. Congress
can, agreeably to the Constitution, lay a duty of ten dol-
lars a head on slaves; they may do this immediately.
He made a calculation of the value of slaves in the
Southern States: he supposed they might be worth ten
millions of dollars. Congress have a right, if they see
proper, to make a proposal to the Southern States to
FIRST ABOLITION PETITION.
375
purchase the whole of them; and their resources in the
western country may furnish them with the means. He
did not mean to suggest a measure of this kind; he only
instanced these particulars to show that congress has a
right to interfere in this business. He thought that no
objection had been offered of any force to prevent the
committing the memorial.”
“Mr. Boudinot was in favor of the commitment, and
enlarged on the idea suggested by Mr. Gerry, and ob-
served the memorial contained only a request that con-
gress would interpose their authority in the cause of
humanity and mercy."
“Mr. Gerry and Mr. Stone severally spoke again on
the subject. The latter gentleman, in opposition, said
that this memorial was a thing of course ; for there never
was a society of any considerable extent, which did not
interfere with the concerns of other people ; and this
interference, at one time or another, deluged the world
in blood. On this principle, he was opposed to the com-
mitment.”
“Mr. Tucker moved to modify the first by striking
out all after the word "opinion,' and insert the following:
that the several memorials proposed for the consideration
of this house, a subject on which its interference would
be unconstitutional, and even its deliberations highly
injurious to some of the States of the Union.'"
"Mr. Jackson observed he had been silent on the
subject of the report coming before the committee, be-
cause he wished the principles of the resolutions to be
fairly examined, and to be decided on their true grounds.
He was against the proposition generally, and would
examine the policy, the justice; and the use of them;
and he hoped, if he could make them appear in the same
light to others as they did to him, by fair arguments,
that the gentlemen in opposition were not so determined
in their opinions as not to give up their present sentiments.
376
PROCEEDINGS OF CONGRESS ON THE
“With respect to the policy of the measure, the
situation of the slaves here, their situation in their native
States, and the disposition of them in case emancipation,
should be considered. That slavery was an evil habit
he did not mean to controvert; but that habit was al-
ready established, and there were peculiar situations in
countries which rendered that habit necessary. Such
situations the States of South Carolina and Georgia were:
in ; large tracts of the most fertile land on the continent
remained uncultivated for the want of population. It
was frequently advanced on the floor of congress, how
unhealthy those climates were, and how impossible it
was for northern constitutions to exist there. What, he
asked, is to be done with this uncultivated territory? Is
it to remain a waste? Is the rice trade to be banished
from our coast? Is congress willing to deprive it-
self of the revenue arising from that trade, which
is daily increasing, and throw this great advantage into
the hands of other countries ?
“Let us examine the use or benefit contained in the
report. I call upon gentlemen to give me one single
instance in which they can be of any service. They are
of no use to congress. The powers of that body are
already defined, and those powers cannot be amended,
confirmed, or diminished, by ten thousand resolutions.
Is not the first proposition of the report contained in the
Constitution ? Is not that the guide and rule of legisla-
tion? A multiplicity of laws is reprobated in society,
and tends to confound and perplex. How strange would
a law appear to confirm a law; and how much more
strange must it appear for this body to pass resolutions
to confirm the Constitution under which they sit! This
is the case with others of the resolutions.'
“A gentleman from Maryland (Mr. Stone) very
properly observed that the Union had received the States
with all their evil habits about them. This was one of
FIRST ABOLITION PETITION.
377
those habits, established long before the Constitution,
and could not now be remedied. He begged congress
to reflect on the number on the continent who were op-
posed to this Constitution, and on the number which yet
remained in the Southern States.
“The violation of this compact they would seize on
with avidity; they would make a handle of it to cover
their designs against the government, and many good
federalists, who would be injured by the measure, would
be induced to join them ; his heart was truly federal,
and it had always been so; and he wished those designs
frustrated. He begged congress to beware before they
went too far; he called on them to attend to the interests
of two whole States, as well as a memorial of a society
of Quakers, who came forward to blow the trumpet of
sedition, and to destroy that Constitution which they had
not in the least contributed, by personal services or sup-
ply, to establish.
“He seconded Mr. Tucker's motion.”
It would seem, from Mr. Jackson's observations,
he thought the memorial was so much in harmony
with the Constitution that congress would, by
adopting its principles, be but making resolutions
confirmatory of their acknowledged powers; and
also the thought never struck him the African could
have willingly emigrated to this country, if proper
means had been used to induce him to come, as
well as to have brought him here by force, and
against his consent.
« Mr. Smith, of South Carolina, said the gentleman
from Massachusetts (Mr. Gerry) had declared it was
the opinion of the select committee of which he was a
member that the memorial from the Pennsylvania socie-
ty required congress to violate the Constitution. It was
32*
378
PROCEEDINGS OF CONGRESS ON THE
not less astonishing to see Dr. Franklin taking the lead
in a business which looks so much like persecution of
the southern inhabitants, when he recollected the parable
he had written some time ago, with a view of showing
the impropriety of one set of men persecuting others for
a difference of opinion. The parable was to this effect :
An old traveller, hungry and weary, applied to the
patriarch Abraham for a night's lodging. In conversa-
tion, Abraham discovered the stranger differed from him
on religious points, and turned him out of doors. In the
night God appeared unto Abraham, and said, Where is
the stranger? Abraham answered, I found that he did
not worship the true God, and so I turned him out of
doors. The Almighty thus rebuked the patriarch:
“ Have I borne with him threescore and ten years,
and couldst not thou bear with him one night?' Has
not the Almighty, said Mr. Smith, borne with us more
than threescore and ten years? He has even made our
country opulent, and shed the blessings of: affluence
and prosperity on our land, notwithstanding all its
slaves, and must we now be ruined on account of the
tender consciences of a few scrupulous individuals who
differ from us on this point ?
“Mr. Boudinot agreed with the general doctrines of
Mr. S. but could not agree that the clause in the Consti-
tution relating to the want of power in congress to
prohibit the importation of such persons as any of the
States now existing shall think proper to admit, prior to
the year 1808, and authorizing a tax or duty on such,
importations, not exceeding ten dollars for each person,
did not extend to negro slaves. Candor required that he
should acknowledge that this was the express design of
the Constitution ; and therefore congress could not in-
terfere in prohibiting the importation, or promoting the.
emancipation, of them, prior to that period. .
FIRST ABOLITION PETITION.
379
« Mr. Boudinot observed, that he was well informed
the tax or duty of ten dollars was provided instead of five
per cent. ad valorem, and was so expressly understood
by all the parties in the convention ; that therefore it was
the interest and duty of congress to impose this tax, or it
would not be doing justice to the States, or equalizing
the duties throughout the Union. If this was not done,
merchants might bring their whole capital in this branch
Boudinot observed, that the gentleman had overlooked
the prophecy of St. Peter, where he foretells, among
other damnable heresies, “Through covetousness shall
they with feigned words make merchandise of you.""
[Memorial rejected.] 1
Without adverting here to any arguments used
in this work on the general welfare, the interest
the whole country has in suppressing insurrec-
tions and keeping the people in a state of peace and
quietness, or the power of congress over the effect-
ive strength of the country in case of war, if Mr.
Madison's and Mr. Gerry's assertions are correct
in the foregoing proceedings -- and Mr. Madi-
son was an actor in all of the various stages
through which the Constitution passed, and who
undoubtedly had as good an opportunity of know-
ing the feelings and sentiments of all who had
taken an interest in having it adopted as any one,
and whose opinions seem, in some measure, to have
changed towards this point — our second proposi-
tion, we think, is proved ; namely, that the general
government has power to abolish the system of
slavery, if it should require its assistance so to do. ,
1 Elliot's Reports, vol. iv. p. 211.
CHAPTER XV.
ARGUMENTS DERIVED FROM THE DECISIONS OF THE
COURT OF THE UNITED STATES.
We will now turn to some of the legal decis-
ions made in the Supreme Court of the United
States, and see if we can glean from them any
views that would coincide with the opinion held
forth in this work. In doing so, we are aware
that, in many cases cited, the subject of slavery, or
the relation the slave is said to hold to his master, :
may not have entered into the mind of the judge,
or judges, who have decided in the several cases
brought forward. Consequently, we shall assume
the colored man has inalienable rights, as well as
the white man; and if he is a man, he must be
treated as such ; and, therefore, whatever is true of
one is true of the other, and the immunities
granted to one is equally to be considered within
the reach of the other. For, unless we admit the
law of force -- that might makes right—and that
the decisions of our courts are founded on this
principle, we must put all men under the protec-
tion of the law; and as no distinction is any where
acknowledged as dependent on the color of the
skin, and the colored man has not admitted he is
subject to any laws that may have been made in
DECISIONS OF THE SUPREME COURT.
IN
violation of his rights, we must suppose the courts
will not object, that the doctrines advanced that
secure the rights of one class of men are broad
enough to secure the rights of all. For we ask the
question -- and we put it with all seriousness --- if
A, B, and C can get together and make laws for
D, E, and F, when D, E, and F do not acknowl-
edge the supremacy that is sought to be obtained,
what right has A, B, and C to make laws for D,
E, and F, when the latter can take care of them-
selves as well as the former; or, even if they can-
not so well as might be desired, if they are satis-
fied with their condition, and do not interfere with
the rights of others, from whence does A, B, and
C, or any one else, derive their authority to cause
D, E, and F, against their will, to bow to their
supremacy ? Clearly they, nor any others, have
the right, unless, when they come into society to
enjoy its benefits, they, with the rest, submit to
equal and impartial laws. Supposing, then, that
the government of the United States was estab-
lished for the purpose --- and as we have attempted
in these pages to prove it was established - to give
equal and impartial laws to all, whether white or
black, bònd or free, whether they live at the
South, or reside at the North ; that all and each
come under the same laws, are to be treated alike;
and that there is to be no distinction, where no
distinction is pointed out. The descendants of
Africa are nowhere designated to be treated
differently from the descendants of Europe : one
fate, one destiny, so far as language expresses
382
DECISIONS OF THE SUPREME COURT.
.
thought, await on each and all that come within
the borders of our country. But, without further
comment, we will quote from the case Marbery
vs. Madison.
- In this case, Mr. Marbery asked for a mandamus
to be issued against James Madison, for not giving
him his commission when he had received an ap-
pointment from John Adams. The court decided,
that, after he had received the appointment, and it
was signed by the president, and the seal of the
state was attached, he had a right to the office,
and the court fortified the position they assumed
on these grounds : among others they say, -
“ This brings us to the second inquiry, which is, - if
he has a right, and that right has been violated, do the
laws of his country afford him a remedy?
“ The very essence of civil liberty certainly consists
in the right of every individual to claim protection of the
laws whenever he receives an injury. One of the first
duties of government is to afford that protection. In
Great Britian, the king himself is sued in the respectful
form of a petition, and he never fails to comply with the
judgment of his court.
“In the third volume of his commentaries, page 23,
Blackstone states two cases by which a remedy is afford-
ed by mere operation of law.
666 In all other cases,' he says, “it is a general and
indispensable rule, that, where there is a legal right, there
is a legal remedy by suit, or action of law, whenever
that right is invaded.'
“And afterwards, page 109 of the same volume, he
says, — "I am next to consider such injuries as are cog-
nizable by the courts of the common law. And herein
.
I shall, for the present, only remark that all possible in-
juries whatsoever, that did not fall within the exclusive
cognizance of either the ecclesiastical, military, or
maritime tribunals are, for that very reason, within the
cognizance of the common law courts of justice ; for
it is a settled and invariable principle in the laws of
England, that every right, when withheld, must have a
remedy, and every injury its proper redress.'
“The government of the United States has been
emphatically termed a government of laws, and not of
men. It will certainly cease to deserve this high appel-
lation, if the laws furnish no remedy for a vested-legal
right.
“ If this obloquy is to be cast upon the jurisprudence
of our country, it must arise from the peculiar character
of the case." I
Further on, in the same case, he says, —
for their future government, such principles as in their
opinion shall most conduce to their own happiness, is the
basis on which the whole American fabric has been
erected. The exercise of this original right is a very
great exertion; nor can it, nor ought it, to be frequently
repeated. The principles, therefore, so established, are
deemed fundamental. And as the authority from which
they proceed is supreme, and can seldom act, they are
designed to be permanent.” 2.
It is certainly hoped Mr. Marshall, in the expres-
sions “vested legal rights," and "the peculiar char-
acter of the case,” meant not any peculiar character
in the American Constitution, and that these ex-
Marshall on the Constitution, p. 24.
2 Idem, p. 161.
384
DECISIONS OF THE SUPREME COURT.
pressions were used to avoid making observations
that would, in their consequences, carry him too
far in the cause of individual liberty and rights ;
and, as these latter were specially confided to the
keeping of the United States, when a State could
not or would not maintain them, we must pre-
sume he meant in the expressions “vested legal
rights," &c.' all the rights of an individual, unless
those rights had been forfeited by some peculiar
criminal act on the part of the individual.
The case of Sturgis vs. Crowningshield. —
This was a case on the obligation of contracts.
An argument was adduced, when the States had,
from their earliest legislation, discharged contracts,
and, consequently, as this was a case that would
be beneficial in the operation of a discharge, it
would not come within the meaning of the Con-
stitution. The court answer this objection by
saying, -
“That, although the spirit of an instrument, especially
of a constitution, is to be respected, not less than its
letter, yet the spirit is to be collected chiefly from its
words. It would be dangerous in the extreme to infer,
from extrinsic circumstances, that a case, for which the
words of an instrument expressly provide, should be
exempted from its operation. When words conflict with
each other, when the different clauses of an instrument
bear upon each other, and would be inconsistent unless
the natural and common import of words be varied, con-
struction becomes necessary, and a departure from the
obvious meaning of words is justifiable. But if in any
case the plain meaning of a provision, not contradicted
by any other provision in the same instrument, is to bé
DECISIONS OF THE SUPREME COURT.
385
.
disregarded, because the framers of that instrument did
not mean what they say, it must be one in which the
absurdity, and injustice of applying the provisions to the
case would be so monstrous, that all mankind would,
without hesitation, unite in rejecting the application.”?
. In the Constitution of the United States, what
is the spirit to be gathered from the words, and
what construction should be put upon them? Are
the amendments made to this instrument in con-
flict with other parts of it? do they contradict
any other of its provisions, or are they not rather
in harmony? or were they not meant to elucidate
or to fortify the principles of liberty, which were
thought not to be sufficiently clear or prominent in
the instrument proposed ? or did the framers of
these amendments not intend what they said ?
Would the applying the provisions here made to
all the people of the land be so “monstrous," or
"absurd” and “unjust," "that all mankind
would, without hesitation, unite in rejecting the
application ;” or is the not applying them, as
was the known intention of those by whose influ-
ence they were introduced in the form they
were, the crying sin of the land, producing the
monstrosities, absurdities, and injustice that are
now manifested, and that have exhibited them-
selves in almost all the legislative halls of our
land ? For ourselves, we cannot but suppose our
practices, having been so opposed to the general
S
.
'Marshall on the Constitution, p. 155.
33
386
DECISIONS OF THE SUPREME COURT.
of nearly all our internal dissensions, and that our
departure from these general principles is the cause
why we may be pointed at by the finger of scorn
for our inconsistency. We know of no other
reason why it could be done.
The case of McCulloch vs. the State of Mary-
land. - This case was one for testing the right of
the State in taxing a branch of the United States
Bank by the State of Maryland, and in which the
constitutionality of establishing such an institution
at all was called in question ; and for our purpose
we quote,
“ The first question made in the cause is, has congress
power to incorporate a bank ?
“It has been truly said this can scarcely be considered
an open question, entirely unprejudiced by former pro-
ceedings of the nation respecting it The principle
now contested was introduced at a very early period of
our history, has been recognized by many successive
legislatures, and has been acted upon, by the judicial de-
partment, in cases of peculiar delicacy, as a law of un-
doubted obligation.”
“ The power now contested was exercised by the first
congress elected under the present Constitution. The
bill for incorporation of the Bank of the United States
did not steal upon an unsuspecting legislature, and pass
unobserved. Its principles were completely understood,
and was opposed with equal zeal and ability. After being
resisted first in the fair and open field of debate, and,
afterwards in the executive cabinet, with as much perse-
vering talent as any measure has ever experienced, and
being supported by arguments which convinced minds as
pure and as intelligent as this country can boast, it be-
came a law. The original act was permitted to expire ;
DECISIONS OF THE SUPREME COURT.
but a short experience of the embarrassments to which a
refusal to revive it exposed the government convinced
those who were most prejudiced against the measure of
its necessity, and induced the passage of the present law.
It would require no ordinary share of intrepidity to
assert that a measure adopted under these circumstances
was a bold and a plain usurpation, to which the Consti-
tution gave no countenance."
“In discussing this question, the council for the State
of Maryland have deemed it of some importance, in the
construction of the Constitution, to consider that instru-
ment not as emanating from the people, but as the act of
sovereign States. The powers of the general govern-
inent, it has been said, are delegated by the States, who
alone are truly sovereign, and must be exercised in sub-
ordination to the States, who alone possess supreme
dominion.
" It would be difficult to sustain this proposition. The
convention which framed the Constitution was indeed
elected by the State legislatures ; but the instrument,
when it came from their hands, was a mere proposal,
without obligation, or pretension to it. It was then re-
ported to the then existing congress of the United States,
of delegates, chosen in each State by. the people thereof,
under the recommendation of its legislature, for their
assent and ratification.'
“ This mode of proceeding was adopted; and by the
convention, by congress, and by the State legislatures,
the instrument was submitted to the people. They acted
upon it in the manner they can act safely, effectively,
and wisely, on such a subject, by assembling in conven-
tion. It is true, they assembled in their several States ;
and where else should they have assembled ? No
political dreamer was ever wild enough to think of
ch a subjecabled in their sembled ?
No
.
DECISIONS OF THE SUPREME COURT.
. 388
breaking down the lines that separate the States, and of
compounding the American people in one common
mass. Of consequence, when they act, they act in
their States. But the measures they adopt do not, on
that account, cease to be measures of the people them- .
selyes, or become the measures of the State govern-
ments.
From these conventions the Constitution derives its
whole authority. The government proceeds diroctly
name of the people, and is declared to be ordained
in order to form a more perfect union, establish justice,
insure domestic tranquillity, and secure the blessings of .
liberty to thenrselves and their poslerily."
“ The assent of the States in their sovereign capacity
is implied in calling a convention, and thus submitting
that instrument to the people. But the poople were at
perfect liberty to accept or reject it; and their act .was
final. It required not the affirmance, and could not be
negatived by the State governments. The Constitution,
when thus adopted, was of complete obligation, and
bound the State sovereignlies."
“To the formation of a league, such as was the con-
federation, the State sovereignties were certainly compe-
tent. · But when, in order to form a more perfect
union, it was deemed necessary to change the alliance
into an effective government, possessing great and sove-
reign powers, and acting directly on the people, the
necessity of referring it to the people, and of deriving its
powers directly from them, was felt and acknowledged
by all. .
- The government of the Union, then, (whatever may
be the influence of this fact on the case,) is emphatically
and truly a government of the people. In form and in
substance it emanated from them. Its powers are grant-
the influence of intent of the people powers are gram
DECISIONS OF THE SUPREME COURT.
i
389
od by them, and are to be exercised directly on them,
and for their benefit." I .
. “If any proposition could command the universal
assent of mankind, we might expect it would be this, -
that the government of the Union, though limited, in its
powers, is supreme within its sphere of action."
-“But this question is not left to mere reasoning. The
people have, in expressed torms, decided it by saying,
* This Constilution, and the laws of the United States
which shall be made in pursuance thereof, shall be the
supreme law of the land,' and by requiring that the
members of the State legislatures, and the officers of the
executive and judicial departments of the States, shall
take the path of fidelity to it." ?
“It can never be pretonded that these vast powers
draw after them others of inferior importance, morely
because they are inferior. Such an idea can never be
advanced. But it may, with great reason, be contended,
that a government entrusted with such ample powers,
on the due execution of which the happiness and pros-
perity of the nation so vitally dopend, must also be on-
trusted with 'ample means for their execution. The
power being given, it is for the interest of the nation to
facilitate its execution."0
"But the Constitution of the United States has not left
the right of congress to employ the necessary means for
the execution of the powers conferred on the govern-
ment to general reasoning. To its enumerated powers
is added that of making all laws which shall be neces-
sary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution
in the government of the Unitod States, or in any de-
partment thereof." ??
Marshall on the Constitution, p. 161. Idem, p. 104.
. Idem, p. 166.
• Idem, p. 168.
33*
390
DECISIONS OF THE SUPREME COURT.
Mr. Marshall, in making this assertion, gives the
following reasons for so doing :
“1. The clause is placed among the powers of con-
gress, not among the limitation of those powers.
52. Its terms purport to enlarge, not to-diminish, the
powers vested in the government. It purports to be an
additional power, not a restriction on those already
granted. No reason has been,.or.can be, assigned for
thus concealing an intention to narrow the discretion of
the national legislature under words which purport to
enlarge it. The framers of the Constitution wished its
adoption, and well knew it would be endangered by its
strength, not by its weakness. Had they been capable of
using language which would convey to the eye one idea,
and, after deep reflection, impress on the mind another,
they would rather have disguised the grant of power
than its limitation. If, then, their intention had been, by
this clause to restrain the free use of means which might
otherwise have been implied, that intention would have
been inserted in another place, and would have been
expressed in terms resembling these : "In carrying into
execution the foregoing powers,' &c. no law shall be
passed but such as shall be pecessary and proper. Had
the intention been to make this clause restrictive, it
would unquestionably have been so in form, as well as
in effect.
" The result of the most careful and attentive con-
sideration bestowed on this clause is, that if it does not
enlarge, it cannot be construed to restrain the powers of
congress, or to impair the right of the legislature to
exercise its best judgment in the selection of measures to
carry into execution the constitutional powers of the
government. If no other motive can be suggested, a,
sufficient one is found in the desire to remove all doubts
DECISIONS OF THE SUPREME COURT.
391
.
respecting the right to legislate in that vast mass of inci-
dental powers which must be involved in the Constitu-
tion, if that instrument be not a splendid bauble.
56 We admit, as all must admit, that the powers of the
government are limited, and that its limits are not to be:
transcended. But we think the sound construction of
the Constitution must allow to the legislature the discre-
tion, with respect to the means by which the powers it
confers are to be carried into execution, which will
enable that body to perform the high duties assigned to
it in a manner most beneficial to the people. Let the
end be legitimate, let it be within the scope of the Con--
stitution, and all means which are appropriate, which
are plainly adapted to that end; which are not prohibited,
but consists with the letter and spirit of the Constitution,
are constitutional."'!.
“Should congress, in the execution of its powers,
adopt measures which are prohibited by the Constitution,
or should congress, under the pretence of executing its
powers, pass laws for the accomplishment of its objects
not entrusted to the government, it would become the
painful duty of this tribunal, should a case requiring such
a decision come before it, to say that such an act was
not the law of the land. But when the law is not
prohibited, and is really calculated to effect any of the
objects entrusted to the government, to undertake here
to inquire into the degree of its necessity would be to
pass the line which circumscribes the judicial depart-
ment, and to tread on legislative ground. This court
disclaims all pretensions to such power.”
“After the most deliberate consideration, it is the
unanimous opinion of this court, that the act to incorpo-
rate the Bank of the United States is a law made in
" Marshall on the Constitution, p. 174.
2 Idem, p. 177.
392
S
DECISIONS OF THE SUPREME COURT.
pursuance of the Constitution, and is a part of the su-
preme law of the land." I
Now if it was in the power of congress, as this
court has decided, to establish a bank for the gen-
eral good of the community, or to facilitate the
operations of the government, might they not
break up a system of slavery, when it is found
for the general good to have it done, or when it is -
found this system is constantly involving the gov-
ernment in expenses, and the country in acts of
oppression? Can one be any greater stretch of
power than the other? If we can build up for
the general good, can we not pull down? If the
people of the land can create, can they not also
destroy ? Or must they, whether they will or no,
suffer an evil, and that a constantly growing evil,
to increase without let or hinderance? We see not
the object of any government, if such be the fact.
But it would seem, from this decision, our fa-
thers did not leave the subject so loose. “They
left the question not to mere reason: the people
have in express terms decided it, by saying, this
Constitution, and laws made in pursuance thereof,
would ask if the not making every person free in
our land would not be in pursuance of, and con-
sistent with, the provisions of the Constitution.
We think it would be hard for any one, consist-
ently with truth, to contradict or deny it; and,
while the court say the people have the power of
Marshall on the Constitution, p. 178.
DECISIONS OF THE SUPREME COURT.
393
making the laws, they also claim
the power of
tions from pages 166 and 174; consequently, if
they have the power of abolishing slavery, if the
Constitution has not already done it, they would
have it in their power to put their laws into exe-
is correct, and slavery is found to be inconsistent
with the Constitution, both in its spirit and its
letter, that it is destructive to the best interest of
the country, congress, while it possesses the power
of declaring it is so, possesses also the power of
carrying any law into effect which would be
necessary for its overthrow. For, if it possesses
the power of establishing a bank because it is
convenient to carry on the operations of govern-
ment, may it not also possess the power of estab-
lishing the rights of the members of that govern-
ment? or are personal rights of less consequence
than money; and may they be invaded and set at
naught, and no objection made, when we may
spend all our time in legislating how money may
be spent or transmitted by the community ? No!
The first consideration was, and is, to establish
and preserve the individual in his freedom, and
then to legislate how to act in that freedom with
the greatest benefit to himself and those around
him. Having decided these points, then the power
of the legislature comes in, with power to carry
into execution its determinations, if not restrained
by some express considerations. This seems to us
the doctrine held by the court.
Again, in the same case, he says, ---
S
*** The argument on the part of the State of Maryland
is, not that the States may directly resisť a law of con-
gress, but that they may exercise their acknowledged
power upon it, and that the Constitution leaves them this
right, in the confidence they will not abuse it.
“ Before we proceed to examine this argument, and
subject it to the test of the Constitution, we must be per-
mitted to bestow a few considerations on the nature and
extent of this original right of taxation, which is acknowl-
edged to remain with the States. It is admitted that the
power of taxing the people and their property is essential
to the very existence of government, and may be legiti-
mately exercised on the objects to which it is applicable,
to the utmost extent to which the government may choose
to carry it. The only security against the abuse of this
power is found in the structure of the government itself.
In 'imposing a tax, the legislature acts upon its constitu-
ents. This is, in general, a sufficient security against
erroneous and oppressive taxation.
.“ The people of a State therefore give to their govern-
ment a right of taxing themselves and their property ;
and, as the exigencies of government cannot be limited,
they prescribe no limits to the exercise of this right,
resting confidently on the interest of the legislature, and
on the influence of the constituents over their representa-
employed by the government have no such security ; nor
is the right to tax them sustained by the same theory.
Those means are not given by the people of a particular
State, nor given by the constituents of the legislature
which claims the right to tax them, but the people of all
the States. They are given by all for the benefit of all,
and upon theory should be subjected to that government
only which belongs to all.” ?
Marshall on the Constitution, p. 180.
DECISIONS OF THE SUPREME COURT. : 395
“ The sovereignty of a State extends to every thing
which exists by its own authority, or is introduced by its
permission ; but does it extend to those means employed
by congress to carry into execution powers conferred on
that body by the people of the United States? We
think it demonstrable it does not. These powers are
not given by the people of a single State ; they are
given by the people of the United States to a govern-
ment whose laws, made in pursuance of the Constitution, ,
are declared to be supreme. Consequently, the people
of a single State cannot confer a sovereignty which will
extend over them.
“If we measure the power of taxation residing in a
State by the extent of sovereignty which the people of a
single State possess and can confer on its government,
we have an intelligible standard, applicable to every case
to which the power may be applied. We have a princi-
ple which leaves the power of taxing the people and
property of a State unimpaired, which leaves to a State
the command of all its resources, and which places
beyond its reach all those powers which are conferred
by the people of the United States on the government of
the Union, and all those means which are given for the
purpose of carrying those powers into execution. We
have a principle which is safe for the States and safe for
the Union, &c."
“ But, waiving this theory for the present, let us re-
sume the inquiry, whether this power can be exercised
by the respective States, consistently with a fair construc-
tion of the Constitution.
“That the power to tax involves the power to destroy ;
that the power to destroy may defeat and render useless
the power to create ; that there is a plain repugnance in
conferring on our government the power to control the
constitutional measures of another, which other, with
396
DECISIONS OF THE SUPREME COURT.
respect to those very measures, is declared to be supreme
over that which exerts the control, - are propositions not
to be denied. But all inconsistencies are to be recon-
ciled by the magic word CONFIDENCE. Taxation, it is
said, does not necessarily and unavoidably destroy. To
carry it to the excess of destruction would be an abuse,
to assume which would banish that confidence which is
essential to all government.
of one State trust those of another with the power to
control the most insignificant, operations of their State
governments ? We know they would not. Why, then,
should we suppose that the pepole of any one State
should be willing to trust those of another with the power
to control the operations of a government to which they
have confided their most important and most valuable
interest? In the legislature of the Union alone are all
represented. The legislature of the Union alone there-
fore, can be trusted by the people with the power of
controlling measures which concern all, in the confidence
it will not be abused. This, then, is not a case of con-
fidence, and we must consider it as it really is.”]
. After some more arguments elucidating this
point, he comes to this conclusion :
“We are unanimously of the opinion that the law
passed by the legislațure of Maryland, imposing a tax on
the Bank of the United States, is unconstitutional and void...
“ This opinion does not deprive the States of any re-
sources which they originally possessed. It does not extend
to a tax paid by the real property of the bank, in common
with the other real property within the State, nor to a tax
· Marshall on the Constitution, p. 181.
DECISIONS OF THE SUPREME court.
397
may hold in this institution, in common with other prop-
erty of the same description throughout the State. But
this is a' tax on the operation of the bank, and is conse-
quently a tax on the operation of an instrument employed
by the government of the Union to carry its powers into
execution. Such a tax must be unconstitutional.”.
Here is a case where the power of the people
comes in play, independent of the State authori-
ty, and the court justifies the power; and, in the
course of their observations, they say the “sove-
reignty of a State extends to every thing which
exists by its own authority, or is introduced by its
permission.” If man was a thing, we might ask,
does he exist by the authority of a State, or is he
introduced into a State by its permission? We an-
swer, no. Also it is not in the power of the Ştates to
prevent any person from coming within their bor-
ders: this power now lays alone in congress, and it
is by permission of congress alone any one can
take up their residence in this country; (though -
we trust this power of prevention will not be exer-
cised ;) and, consequently, the sovereignty over him
for certain purposes remains alone in congress, ac-
cording to the reasoning here adopted by the court.
The court comments justly, we think, on the
word confidence. Since the late developements of
the feeling of the South on the subject of slavery,
what confidence, we may now ask, can be put in
communities who have shown such a disposition
to depart from all the established principles of our
-
Marshall on the Constitution, p. 187.
398 · DECISIONS OF THE SUPREME COURT.
government, and declarations of our fathers, as is
now manifested in the desire to continue slavery
in our land. It is well, we trust, there is a power
some where to put a check to this departure from
our principles, and we trust, ere long, we shall be
able to exercise it. Instead of preparing the slave
for freedom, as it was understood they would do,
they have constantly been drawing the chains
eloser, and, by legislative acts, endeavoring to ren-
der his case perfectly hopeless, thereby prevent-
ing the country from receiving that service from
him which it might otherwise have done. The
taking our capitol at Washington by the British
soldiers might, it is said, have been prevented, had
the colored population had their freedom ; for, in-
stead of being a body of men on whom they could
rely, they were, on the contrary, to be dreaded ;
in fact, if our impression is right, many chose the
British camp rather than the homes their masters
had provided for them ; consequently we see not
but the holding men in slavery is as much a tax
on the operations of the government, as a tax
would be on the operation of a bank, established
by them. Is not the Florida war, also, a tax on the
operation of our government, as also the removing
the Cherokees; and yet both of them took their
rise from the system of slavery ; the former, from
the unwarrantable claiming children of Indian
parentage, and the latter, because the slave had
rather reside among savages than to receive what
has been called the Christian treatment of the
white man. And have we any assurances our
DECISIONS OF THE SUPREME COURT.
399
country will not be constantly kept in broils of a
similar description, and have we no right to pre-
vent them by removing the cause? The doctrine
here put forth by the court would, we think,
justify it.
In the case of Cohens vs. the State of Virginia,
they speak of the power of the court, and the
powers of the United States, on this wise :
66 The use intended to be made of this exposition of
the first part of the section, defining the extent of the
judicial power, is not clearly understood. If the inten-
tion be merely to distinguish cases arising under the
Constitution from those arising under a law, for the
sake of precision in the application of this argument,
these propositions will not be controverted. If it be to
maintain a case arising under the Constitution, or a law,
we think the construction too narrow. A case in law
or equity consists of the right of the one party, as well
as of the other, and may truly be said to arise under the
Constitution, or a law of the United States, whenever its
correct decision depends on the construction of either.
Congress seems to have intended to give its own con-
struction to this part of the Constitution in the twenty-
fifth section of the judiciary act; and we perceive no
-
“ The jurisdiction of the court, then, being extended
by the letter of the Constitution to all cases arising under
it, or under the laws of the United States, it follows that
those who would withdraw any case of this description
from that jurisdiction must sustain the exemption they
claim on the spirit and true meaning of the Constitution,
which spirit and true meaning must be so apparent as to
s The American States, as well as the American
400
DECISIONS OF THE SUPREME COURT. .
ist with laught berty and er and to
people, have believed a closer and firmer union to be
essential to their liberty and to their happiness. They
have been taught by experience that this union cannot
exist without a government for the whole, and they have
been taught by the same experience that this government
would be a mere shadow that must disappoint all their
hopes, unless invested with large portions of that sove-
reignty which belongs to independent States. Under
the influence of this opinion, and thus instructed by
experience, the American people, in the convention
of their respective States, adopted the present Consti-
tution.
“ If it could be doubted whether from its nature it
were not supreme in all cases where it is empowered to
act, that doubt would be removed by the declaration 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.
" This is the authoritative language of the American
people, and, if the gentleman please, of the American
States. It marks, with lines too strong to be mistaken,
the characteristic distinction between the government of
the Union and those of the States. The general govern-
ment, though limited as to its objects, is supreme with
respect to those objects. This principle is a part of the
Constitution; and if there be any who deny its necessity,
none can deny its authority.
6 To this supreme government ample powers are con-
fided ; and if it were possible to doubt the great purposes
for which they were so confided, the people of the United
States have declared that they are given in order to
DECISIONS OF THE SUPREME COURT.
401
form à more perfect union, establish justice, insure the
domestic tranquillity, provide for the common defence,
promote the general welfare, and secure the blessings of
liberty to themselves and their posterity.'
“ With the ample powers confided to this supreme
government, for these interesting purposes, are con- -
nected many express and important limitations on the
sovereignty of the States, which are made for the same
purposes. The powers of the Union, on the great sub-
jects of war, peace, and commerce, and on many others,
are in themselves limitations of the sovereignty of the
States ; but, in addition to these, the sovereignty of the
States is surrendered, in many instances, when the sur-
render can only operate for the benefit of the people, and
when, perhaps, no other power is conferred on congress
than a conservative power to maintain the principles es-
tablished in the.Constitution. The maintenance of these
principles in their purity, is certainly among the great
duties of the government. One of the instruments by
which this duty may be peaceably performed is the judi.
cial department. It is authorized to decide all cases, of
every description, arising under the Constitution or laws
of the United States. From this general grant of juris-
diction no exception is made to those cases in which a
State may be a party. When we consider the situation
of the government, of the Union, and of the States, in re-
lation to each other, the nature of our Constitution, the
subordination of the State governments to that Constitu-
tion, the great purpose for which jurisdiction over all
United States is confided to the judicial department, are
we at liberty to insert in this general grant an exception
of those cases in which a State may be a party ? Will
the spirit of the Constitution justify this attempt to con-
trol its words? We think it will not. We think a
34*
402
DECISIONS OF THE SUPREME COURT.
case arising under the Constitution or laws of the United
States is cognizable in the courts of the Union, whoever
may be the parties to that case:
Had any doubt existed with respect to the just con-
struction of this part of the section, that doubt would
have been removed by the enumeration of those cases to
which the jurisdiction of the federal courts are extended
in consequence of the character of the parties. In that
enumeration we find controversies between two or more
States, between a State and citizens of another State,
between a State and citizens thereof, and between a
State and foreign states, citizens or subjects.
5 One of the express objects for which the judicial de.
partment was established, is the decision of controversies
between States, and between a State and individuals.
The mere circumstance that a State is a party, gives
jurisdiction to the court. How, then, can it be contend-
ed that the very same instrument, in the very same
section, should be so construed as that this same circum- .
stance should withdraw a case from the jurisdiction of
the court, when the Constitution or laws of the United
States are supposed to have been violated ? The Consti-
'tution gave to every person having a claim upon a State
a right to submit his case to the court of the nation.
However unimportant his claim might be, however little
the community might be interested in its decisions, the.
framers of our Constitution thought it necessary, for the
purposes of justice, to provide a tribunal as superior to
influence as possible, in which that claim might be de-
cided. Can it be imagined that the same persons con-
sidered a case involving the Constitution of our country
and the majesty of the laws, questions in which every
American citizen must be deeply interested, as with-
drawn from this tribunal because a State is a party ?"
Marshall on the Constitution, pp. 224—7.
After stating he considered that, as a '“ political
axiom, the “judicial power of every well-regu-
lated government must be coextensive with the
legislature, and must be capable of deciding every
judicial question which grows out of the Con-
stitution and laws," he says, -
“There is certainly nothing in the circumstances
under which our Constitution was formed, nothing in
- the history of the times, which would justify the opinion
that the confidence reposed in the States was so implicit
as to leave in them and their tribunals the power of
resisting or defeating, in the form of law, the legitimate
measures of the Union. The requisitions of congress
under the Confederation, were as constitutionally obliga-
tory as the laws enacted by the present congress. That
they were as universally disregarded is a fact of univer-
sal notoriety."
And, again, -
“If jurisdiction depended entirely on the character of
the parties, and was not given when the parties have an
original right to come into court, that part of the second
section of the third article which extends the judicial
power to all cases arising under the Constitution and
laws of the United States would be mere surplusage. It
is to give jurisdiction when the character of the parties
would not give it, that this very important part of the
clause was inserted. It may be true, that the partịality
of the State tribunals, in ordinary controversies between
a State and its citizens, was not apprehended, and there-
fore the judicial power of the Union was not extended to
such cases; but this was not the sole nor the greatest
object for which this department was created. A more
Marshall on the Constitution, p. 230.
.
Pomov.
404
DECISIONS OF THE SUPREME COURT.
important, a much more interesting object was the pres...
ervation of the Constitution and laws of the United
States, so far as they can be preserved by judicial
authority ; and therefore the jurisdiction of the courts
of the Union was expressly extended to all cases arising
under that Constitution and those laws. If the Constitu-
tion or laws may be violated by proceedings instituted
by a State against its own citizens, and if that violation
be such as essentially to affect the Constitution and laws,
such as to arrest the progress of government in its consti-
tutional course, why should these cases be excepted from
that provision which extends the judicial power of the
laws?
“After bestowing on this subject the most attentive
consideration, the court can perceive no reason, founded
on the character of the parties, for introducing the ex-
ception which the Constitution has not made ; and we
think the judicial power, as originally given, extends to
all cases arising under the Constitution or' a law of the
United States, whoever may be the parties.”!
Speaking of the eleventh amendment, which is
in these words, -- "The judicial power of the
United States shall not be construed to extend
to any suit in law or equity commenced or prose-
cuted against one of the United States by citizens
of another State, or by citizens or subjects of any
foreign state, - he says, —
“ It is a part of our history, that, at the adoption of the
Constitution, all the States were greatly indebted; and
the apprehension that these debts might be prosecuted in
DECISIONS OF THE SUPREME COURT.
405
instrument. Suits were instituted, and the court main-
tained its jurisdiction. The alarm was general; and, to
quiet the apprehension that was so extensively enter-
tained, this amendment was proposed in congress, and
adopted by the State legislatures. That its motive was
not to maintain the sovereignty of a State from the deg-
radation supposed to attend a compulsory appearance
before the tribunal of the nation, may be inferred from
the terms of the amendment. It does not comprehend
controversies between two or more States, or between a
State and a foreign state : the jurisdiction of the court
still extends to these cases, and in these a State may
still be sued. We must ascribe the amendment to some
other cause than the dignity of a State. There is no
difficulty in finding this cause. Those who were inhib-
ited from commencing a suit against a State, or from
prosecuting one that might be commenced before the
adoption of the aínendment, were persons who might
probably be creditors. There was not much reason to
fear that foreign or sister States would be creditors to
any considerable amount, and there was reason to retain
the jurisdiction of the court in those cases, because it
might be essential to the preservation of peace. The
amendment, therefore, extended to suits commenced or
prosecuted by individuals, but not to those brought by
States.
66 The first impression made on the mind by this
amendment is, that it was intended for those cases, and
those only, in which some demand against a State is
made by an individual in the courts of the Union. If
are conducted to the same conclusion. A general in-
terest might well be felt in leaving to a State the full
power of consulting its convenience in the adjustment of
its debts, or of other claims upon it; but no interest
- 406
DECISIONS OF THE SUPREME COURT.
could be felt in so changing the relations between the
whole and its parts as to strip the government of the
means of protecting, by the instrumentality of its courts,
the Constitution and laws from active violence.
" The words of the amendment appear to the court to
justify and require this construction. The judicial power
is not to extend to any suit in law or cquity commenced
or prosecuted against one of the United States by citizens
of another State,"”' &c.'
He then goes on and explains what a suit is,
that it is some claim, demand, or request," and
gives Judge Blackstone's definition of the “reme-
dy for every species of wrong,” which is “the
being put in possession of that right whereof the
party injured is deprived;" and "the instrument
whereby the remedy is obtained is a diversity of
suits and actions."
“Suits had been commenced in the Supreme Court
against some of the States before this amendment was
introduced into congress; and others might be com-
menced before it should be adopted by the State legis-
latures, and might be depending at the time of ils adop-
tion. The object of the amendment was not only to
prevent the commencement of future suits, but to arrest
the prosecution of those that might be commenced when
this article should form a part of this Constitution. It
therefore embraces both objects; and its meaning is, that
the judicial power shall not be construed to extend to
any suit which may be commenced, or which, if already
commenced, may be prosecuted against a State by the
citizens of another State. If a suit, brought into one
court, and carried by a legal process to a supervising
Marshall on the Constitution, p. 244.
DECISIONS OF THE SUPREME COURT.
407
court, be a continuation of the same suit, then this suit
is not commenced or prosecuted against a State. It is
clearly, in its commencement, a suit of a State against
an INDIVIDUAL; which suit is transferred to this court,
not for the purpose of asserting any claim against a
State, but for the purpose of asserting a constitutional
defence against a claim made by a Slate.”!.
Now if any one of the States, or even the
United States, should make a law taking away
the rights of any individual, especially his inalien-
able rights, for no crime, the State, or the United
States, by so doing, claiming a right of control
which is not justifiable by our Constitution, this
claim, if we understand this language, would be
annulled by the courts, if a case should be
brought, either by appeal from the lower courts,
or by a suit brought immediately before the Su-
preme Court.
From the language here held by Mr. Marshall,
we should suspect it was on this ainendment of
the Constitution Mr. Webster based his opinion,
asked him by Messrs. Baring & Brothers, respect-
ing the power of sueing one of the States of the
Union for any claiın for money loaned a State.
His opinion was, they had no power to sue a State
for money loaned. For it will be perceived, by this
amendment, and the reasons Mr. Marshall gives
why it was adopted, that there is now no court in
the country which has the power to entertain such
a suit.
After stating many objects for which the people
'Marshall on the Constitution, p. 246.
408
DECISIONS OF THE SUPREME COURT. -
of the United States are to be considered one
people, he says, —
“The people have declared that, in the exercise of all
powers given for these objects, the government' is
supreme. It can, then, in effecting these objects, legiti-
mately control all individuals or governments within the
American territory. The Constitution or laws of a
State, so far as they are repugnant to the Constitution
and laws of the United States, are absolutely void.
These States are constituent parts of the United States ;
they are members of onc great empire ; for some
purposes sovereign, for some purposes subordinate.” ?
He concludes his opinion on this case in these
words :: ::
“ After having bestowed on this question the most
deliberate consideration of which we are capable, the
court is unanimously of opinion that the objections to its .
jurisdiction are not sustained, and that the motion ought
to be overruled." 3
The case from which the foregoing quotations
are taken was one where judgment had been given
against the firm of P. J. & M. J. Cohens, for sell-
ing lottery tickets, and an appeal to the higher
courts of Virginia was refused. The court ex-
pressed no opinion on the merits of the case, as it
touched no constitutional point, and we know not
their opinion was asked; but they reversed the
opinion of the lower court, and also affirmed their
own jurisdiction in the case ; that is, if we under-
stand it, they had the right to take cognizance of
the rights of the individual if they were infringed
-
Marshall on the Constitution, p. 250.
3 Idem, p. 261.
DECISIONS OF THE SUPREME COURT.: 409.
0
upon by a State, or its courts; and they therefore
gave the persons in this case what they asked,
a hearing before the higher courts of Virginia,
though the lower courts of that State had refused
to grant them their consent.so to do. The rights
of the individual they considered in their keeping.
In these quotations we think the power of the
courts is clearly, sustained, if a case of a slave
could be brought before them, when that slave is
held either without or by any law of any one of
the States; and that the objects for which the
. Constitution was formed was for far other purposės
than for the continuance of slavery. They say
one of the express objects for which the judiciary
department was established, is the decision of
controversies between States, and between a State
and individuals. “The mere circumstance that a
State is a party gives jurisdiction to the court."
Again, “ The Constitution gave to every person
having a claim upon a State a right to submit his
case to the court of the nation.” The court, in
effect, have here said their jurisdiction, unless in
case of crime, extends to the individual, whenever
his rights or the liberty of his person is at stake.
Will they now say the color of the skin determines
their jurisdiction? or, because a person is born un-
der peculiar circumstances, they, in consequence,
have no right to be heard before them, or no rights
as individuals? We think it would be hard for
judges so to decide; but, on the contrary, if the Con-
stitution was adopted by our fathers " to secure jus-
. tice, the blessings of liberty to themselves and their
35
410
DECISIONS OF THE SUPREME COURT.
posterity," as the court here says it was, then we
say, that -- as our Declaration of Independence de-
clares all men have an inalienable right to their
life, liberty, and pursuit of happiness, and that to
secure these rights our revolution was brought
about, and the Constitution was adopted to carry
out this truth, and every State has agreed to this
Constitution, then, if they keep within this Union,
and they violate the doctrines here advanced, and
take away the liberty of an individual, or suffer it
to be taken away by any of its citizens — the court,
if appealed to, has a right, and it is its bounden
duty, to restore the citizen or person to that free-
dom which is by nature his birthright, and which
the Constitution of the country says shall not be
unduly taken away; for it declares, “ The right
of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches
and seizures, shall not be violated," "nor be de-
prived of life, liberty, or property, without due
process of law,” &c. &c. and that it wonld be in
violation of the liberty of themselves or their chil-
dren, if their rights were not secure. We see not
how these arguments can be disposed of, or how
it can be otherwise supposed than that slavery, or
the restraining men in slavery, is in direct viola-
tion of the Constitution, unless it is maintained
the colored man does not belong to the human
species; but we presume no one will maintain this
doctrine.
The court says, in speaking of the confidence
reposed in the different States, — and the language
DECISIONS OF THE S UPREME (
is remarkable, considering how much need there
was to be guarded on the subject, and how far the
States had continued in their departure from the
grand idea of the object of making this land the
land of the free, as slavery has been affirmed to be
a blessing instead of a curse, — that there was
little or no confidence to be placed in the States;
that they had “habitually disregarded constitu-
tional requisitions made by the old congress ;” and
therefore it was not "improbable” that congress
should give the court the power of construing the
Constitution in the last resort;" consequently
nothing has been left in confidence to any one of
the States; the rights of each have been, so far
as possible, clearly and explicitly defined.
But it was objected to the jurisdiction of the
court, in cases between a State and one of its citi-
zens, on the ground that a State would not wrong
one of its own citizens, but that it might wrong an
alien, or a citizen of another State. This is
answered in the quotation from page 233, and
we think it also has been answered in the events
which are constantly occurring in slaveholding
States. The States, it is well known, pay no
sort of attention to the rights of those who are
considered slaves, whether they are white or
black: to all intents and purposes they are put
without the pale of protection; and, if the Supreme
Court have jurisdiction where individual rights
are conderned, "whoever may be the parties,". if
those rights arise under the Constitution, we
cannot see who have greater reasons for being pro-
CD
412.
DECISIONS OF THE SUPREME COURT.
tected by this court than those whose every right
has been taken away from them, not only by laws
of the States, but by force and fraud of individuals.
In the quotation from page 244, the court speaks
of the cause that gave rise to the eleventh amend-
ment of the Constitution. It cannot but be per-
ceived, as we have before remarked, that this
amendment clashes, in some measure, with the
article in the body of the Constitution on the
powers of the judiciary. Why such an amend-
ment was made, it would have been difficult to
have explained, unless one was well acquainted
with our history.
On first reading this amendment over, and
comparing it with the original article, we did not
know what to make of it. There evidently was
something meant that was not explained on the
face of the instrument; but what that something
was, we could not conjecture. We did not know
but it was intended to meet the very case under
consideration, -- to prevent any person out of the.
slave States from bringing an action, where
slavery would be involved; and although a case
could be got into court, yet this amendment, it was
thought, would stand in the way; but the court, it
appears, gives a different version to the subject,
and says it was intended merely to prevent foreign-
ers and people out of the State from sueing their
demands when a State was a creditor.
It is also to be remarked, in these quotations,
· how distinctly the court refers to the caption of
the Constitution to ascertain the purposes for
DECISIONS OF THE SUPREME COURT..
413
which the Constitution was formed, and that from
this its intent and meaning were to be gathered.
How far and how foreign from expressing the least
idea, that the establishment of slavery was one of
its objects, we need not attempt to explain. No
person could think such a thing existed, or could
exist, among a people whose representatives could
write such language. In this case, we think,
according to the opinion here `expressed by the
court, our proposition respecting the power of the
courts is clearly established ; and that they would
have power and jurisdiction over the subject of
slavery; and, if a case should be brought before
them, they would be obliged to take cognizance
of it, and declare the man to be free.
In the case of Gibbens vs. Ogden, a case in
which the State of New York had granted to:
R. R. Livingston and Robert Fulton exclusive
privilege to navigate the waters of that State by
steamboats, Ogden, deriving his right from them,
obtained an injunction against Gibbens, who had
established two steamboats on these waters. Gib-
bens, having been defeated in the highest court
of the State, brought his cause before the United
States Court, which court, as is well known, re-
versed the decisions of the courts of the State of
New York.
Speaking of the objects of the Constitution, and
the powers granted by it, the court says, -
“As preliininary to the very able discussion of the
Constitution which we have heard from the bar, and as
having some influence on its construction, reference has
35*
414
DECISIONS OF THE SUPREME COURT.
been made to the political situation of these States an-
terior to its formation.' It has been said that they were
sovereign, were completely independent, and were con-
nected with each other only by a league. This is true..
But, when these allied sovereigns converted their league
into a government, when they converted their congress
of ambassadors, deputed to deliberate on their common
concerns and to recommend measures of general utility,
into a legislature, empowered to enact laws upon the
most interesting subjects, the whole character in which
the States appear underwent a change, the extent of
which must be determined by a fair consideration of the
instrument by which that change was effected..
- This instrument contains an enumeration of powers
expressly granted by the people to their government. It
has been said these powers ought to be construed strict-
ly. But why ought they to be so construed ? . Is there
one sentence in the Constitution which gives countenance
to this rule? In the last of the enumerated powers, that
which grants expressly the means of carrying all others
into execution, congress is authorized to make all laws
which shall be necessary and proper' for the purpose. ·
But this limitation on the means which may be used is
not extended to the powers which are conferred, nor is
there one sentence in the Constitution which has been
pointed out by the gentlemen of the bar, or which we
have been able to discover, that prescribes this rule.
We do not, therefore, think ourselves justified in adopt-
ing it. What do gentlemen mean by a strict construc-
tion? If they contend only against that enlarged con-
struction which would exlend words beyond their natural
and obvious import, we might question the application of
the term, but should not controvert the principle. If
they contend for that narrow construction which, in
support of some theory not to be found in the Constitu-
.
DECISIONS OF THE SUPREME COURT.
415
tion, would deny to the government those powers which
the words of the grant, as usually understood, import,
and which are consistent with the general views and
objects of the instrument, for that narrow construction
which would cripple the government, and render it un-
equal to the objects for which it is declared to be insti-
tuted, and to which the powers given, as fairly under-
stood, render it competent, then we cannot perceive the
propriety of this strict construction, nor adopt it as the
rule by which the Constitution is to be expounded. As
men whose intentions require no concealment generally
employ the words which most directly and aptly express
the ideas they intend to convey, the enlightened patriots
who formed our Constitution, and the people who adopted
it, must be understood to employ words in their natural
sense, and to have intended what they have said. If,
from the imperfection of human language, there should
be serious doubts respecting the extent of any given
power, it is a well settled rule that the objects for which
it was given, especially when those objects are expressed
in the instrument. itself, should have great influence in
the construction. We know of no reason for excluding
this rule in the present case."'? .
Here the court admits, what every one in his
sober senses must admit, that the men of that. age
meant what they said, and employed « words
which most directly and aptly expressed the ideas
they intended to convey ;” that they "employed
words in their natural sense.” We hope this will
always be borne in mind when it is attempted to
construe their words, when they speak of human
rights; and, if it is done, we think there will be no :
1
? Marshall on the Constitution, p. 288.
416
DECISIONS OF THE SUPREME COURT.
difficulty in the way. When they say a man has
inalienable rights, they mean he has them; and
when they say a man may be given up when he
owes service, they mean, when it is proved that
service is owed, it is time to give the creditor his
due; and we hold the amount of service due
should be proved, as well as that it is for value
received.
This, however, may be called a strict construc-
tion; too strict for the intent and meaning of those
who adopted it as a part of the Constitution. If
such would be maintained, we would then appeal
to the spirit of the Constitution, and to the objects
for which it was formed: these objects, as the
court has said, are to be found in the caption.
Now, taking this in as strict or in as enlarged
view as possible, not the least shadow or "color"
of an idea could be gathered from that, that the
continuation of slavery, or its guaranty, was to be
effected by it; on the contrary, the general happi-
ness, prosperity, and liberty, was the purpose to be
gained. But, again, it may be objected, that the
liberty, happiness, and prosperity of the individual ·
was left and confided to the States; the general
government had nothing to do with him: but the
doctrine of the court, and the decision made in
this case, give a different version to that subject.
They here in effect declare, and undoubtedly with
truth, that, on the adoption of the Constitution, the
States resigned the protection of the individual to
the care of the general government: they gave up
their sovereignty of him to a power which they
CD
0.
DECISIONS OF THE SUPREME COURT.
1
thought would be better able to preserve his liber-
ty and shield him from danger than they, either
in their divided or confederated capacity, could do. ·
Before the adoption of the Constitution, the indi-
'vidual looked to the State to guard his individual
rights; since the adoption of that instrument, the
individual, as in the case cited, looks to the general
government, when the State fails to afford him
that protection. He first looks to the State, and,
if he finds they cannot, or will not, afford him
protection, he then appeals to the courts of the
country, and the State courts must bow to their
decision. If, however, they will not so do, the
Supreme Court has the power to call on all the
military force of the country to put their mandate
into execution. If it is not so, for what purpose
- does the individual owe any allegiance to the
general government? for what purpose does he
sustain it? Is it that he may have the pleasure
of having a president, and a congress of the United
States, and, in the course of time, that he may run
his chance of being one of the distinguished men
to fill these stations, and thereby gain a name?
Is it, as Patrick Henry suggested, that we might
be a great nation, and be able to make a figure
in the world ? and, even if it is so, wherein
do we show our power? Is it not in the ability
we possess of protecting the individual not only
from foreign, but from domestic foes ? Where-
fore are our ships of war sent upon every ocean,
and in every sea, but that the rights of the indi-
vidual, let him be in what sea or ocean he may,
418
02
DECISIONS OF THE SUPREME COURT.
7
should be protected? Wherefore are our ambas-
sadors and consuls despatched to every country on
the globe? Is it not that each and all of our
citizens, if they have taken up a residence there
for business, or have gone on a visit to those
countries, should be protected in their lawful
undertakings, and be preserved from the despotie .
power of others? We hold it so. The govern-
ment, as a government, wants no protection there;
neither do the States, as States. We do not send ·
either' our sailors or ambassadors abroad for con-
quest. The whole object of all our naval forces
that are now cruising in foreign seas, is to protect
the various individuals of our country who may
have wandered there, either in quest of business,
pleasure, or science. This, perhaps, may be
granted, so far as relates to the · white man, to
the Anglo-Saxon, or even to the descendants of
the German, French, ör Spaniard, Greek or Hin-
doo, but not to the descendants of Africa ; of these
we take no account; they are not to be considered
as persons coming within the meaning of the
Constitution ; they are nonentities. But is this
so? In what part of the Constitution is there any
exception made to the African race? Where does
it say this principle applies to one people, and that
principle to another? Where does it say justice
may be meted to one class of persons, and the
most horrid injustice to the other? Where, in
that instrument, is there any distinction made on
account of the color of the skin, and, on account of
that color, must the decision of the judge be
17
VVD
D'ECISIONS OF THE SUPREME COURT.
made ? No such distinction can be pointed out,
and, as we have seen by the amendments to the
Constitution, none was meant to be pointed out.
By the word "person " was meant all individuals,
of whatever clime, nation, or sex, whose home
was within the borders of the United States.
The shield of protection was to be thrown over
all. Hence, we think the Hon. John Q. Adams
has been at fault in saying he should not vote for
the abolition of slavery in the District of Colum-
bia, unless there was a majority of that District in
favor of its abolition, not counting those among
the colored population who would have been in
favor of it. This population he has entirely over-
looked; he has counted themi as naught, as per-
sons who were not to be consulted, as those who
had no interest in the matter. Has he not done
wrong in so doing? We shall leave him to an-
swer for himself.
In the case of Calder and wife vs. Bull and
wife, speaking of the object and aim of men in
entering into the social state, and the powers of the
legislatures to enact laws for the government of
society, the court speaks with great plainness; and,
if their doctrines were carried into force, it would
be impossible for one man to hold another in
bondage. They show that it is not in the power
of the legislature, "in our free republican govern-
ments," "to authorize manifest injustice by posi-
tive law, or to take away that security for person-
al liberty, or private property, for the protection
whereof government was established.” Language
.
· 420
DECISIONS OF THE SUPREME COURT:
cannot be plainer; and, if the present court hold
to the same doctrines, we have but to bring the
case of a slave before its tribunal, and the obnox-
ious, the abhorrent system at once tumbles to the
ground. Like the baseless fabric of a dream, it has
no support. On opening the eyes, the vision is
gone, the whip and the chains vanish, and man, the
slave, stands erect before his fellow-men and his
Maker, in all the conscious dignity of freedom,
subject only to the rule of right, and to that moral
responsibility to which God subjects all his rational
creatures.
We think nothing can be more to our purpose
than the expressions here made by the court,
and they prove what we have in these pages de-
signed to prove. They restore man to his rights,
by the rules of our government, however much
either individuals or States may have endeavored
to overthrow them. The court says, - .
- The nature and end of legislative power will limit
the exercise of it. This fundamental principle flows
from the very nature of our free, republican govern-
ments,--that no man shall be compelled to do what the
laws do not require, nor refrain from acts which the
laws permit. There are acts which the federal or State
legislatures cannot do without exceeding their authority.
There are certain vital principles in our free republican
governments, which will determine and overrule an ap-
parent and flagrant abuse of legislative power: as, to
authorize manifest injustice by positive law; or to take
away that security for personal liberty or private prop-
erty, for the protection whereof the government was es-
tablished. An act of the legislature,- for I cannot call
DECISIONS I
OF THE SUPREME COURT. . 421
it a law, - contrary to the great first principles of the
social compact, cannot be considered a rightful exercise
of the legislative authority. The obligation of law, in
governments established on express compact and on
republican principles, must be determined by the nature
of the power on which it is founded. A few instances
will suffice to explain what I mean : a law that punishes
a citizen for an innocent action; or, in other words, for
an act which, when done, was in violation of no existing
law; a law that destroys or impairs the lawful private
contracts of citizens; A LAW THAT MAKES A MAN A
JUDGE IN HIS OWN CAUSE;, or a law that takes property
from A, and gives it to B. It is against all reason and
justice for a people to entrust a legislature with such
powers ; AND THEREFORE IT CANNOT BE PRESUMED THEY
HAVE DONE IT. The genius, the nature, and the spirit,
of our State governments amount to a prohibition of such
acts of legislation, and the general principles of law .
forbid them.
“The legislature may enjoin, permit, forbid, and pun-
ish; they may declare new crimes, and establish rules
of conduct for all its citizens in future cases; they may
commend what is right, and prohibit what is wrong; but
they cannot change innocence into guilt, or punish inno-
cence as a crime ; or violate the right of an antecedent,
lawful, private contract, or the right of private property.
To maintain our federal or State legislatures possesses
such powers, if they had not been expressly restrained,
would, in my opinion, be a political heresy, altogether
inadmissible in our free, republican governments." I
It might here be asked, could Judge Chase -uise
the above language without having in his mind
the situation of the colored man? Must he not,
Marshall on the Constitution, p. 507.
36
422
DECISIONS OF THE SUPREME COURT.
at the time he delivered this opinion, have been
aware of its bearing on the case of a slave? We
can hardly conceive it possible it should be other-
wise ; and yet it may be: we have no proof he
had, or that his thoughts were otherwise occupied
than with the case before him. But the doctrines
are broad and comprehensive, and yet simple. It
is but saying a legislature, at least one of the legis-
latures, of this Union, may legislate for the good
and welfare of the individuals of the State ; but
they cannot pass laws, either of an immoral char-
acter, and professedly to the injury of any of its
citizens, or make a man a judge in his own cause ;
--and what is a slaveholder but a judge in his own
cause? These, he says, are altogether contrary to
the genius of our government. Can we ask any
thing more?
CHAPTER XVI.
CONCLUSION.
We have now ended our quotations to prove
the doctrine we have advanced, — that the Con-
stitution does not nor cannot guarantee slavery;
and, so far as public documents show -- and these
are the ones on which alone we should rely to
elucidate the subject — we cannot but come to
the conclusion they all prove there could have
been no compact, there was no general under-
standing, it should be continued; but, on the con-
trary, from all the authority we can glean from the
history of the times, the whole system was, for
the most part, execrated as a foul blot on the his-
tory of man; that it was the main design of our
a community where impartial laws should be ad-
ministered, where every person should enjoy his
individual rights unmolested by others; that, after
many hardships and trials, and many attempts
made to overcome their love of freedom, they did
succeed in overthrowing a foreign attempt to en-
slave them, and then established, as they thought
and intended, a government in a great measure
agreeably to their wishes, when they thought,
424
CONCLUSION.
that liberty for which they had so long panted,
and left upon record an instrument, though de-
fective in some points, yet, if its doctrines should
be carried out, would produce the revolution so
much desired; that it is only by departing from
these instructions we find ourselves embarrassed
by such conflicting interest; and that a return
to those few fundamental principles of right and
good government will alone make yis a happy
and prosperous people ; that it was wicked men,
who from the first attempted to establish this
system against the reinonstrances of the good;
and that, by their persevering endeavors, joined,
perhaps, with the honest fear of some, they came
near preventing a union of the States; and, if not
now checked in their mad career, they will make
this land a land of darkness and of the shadow of
death, a land where no goodness dwells, where
crime, bloodshed, and all iniquity may prevail,
where the brute takes possession of the man, and
a state of society as much worse than that which
existed before its present inhabitants took posses-
sion of the soil as can be well conceived, and
which is fitting and preparing for it an early de-
struction, instead of making it, as it might be
made, a paradise on earth, where the bounties of
Providence are so luxuriantly produced, that we
have but to sow, and the seed puts forth her fruit.
Is it, then, too late to bring back the thoughts
from their erratic wanderings ? to do away the
attempt to make lords and masters, and, per con-
sequence, to degrade a portion of our fellow-mèn
CONCLUSION.
425
S
to the level with the brute, or make him subser-
vient only to pamper our lusts and passions ? We
trust that it is not so; we trust there is yet virtue
enough in the land to save it from a degradation
so low and so contrary to the aspirations of those
who have preceded us. Is it too late to appeal to
the right reason of our southern friends, and urge
them to stop, and either let the general govern-
ment take the matter in hand, and do, as we think
we have proved they have the power of doing,
whatever they may think best in extirpating the
system, it being an evil of so great magnitude, or
else let the courts decide, and say that every
individual who whips or maltreats another; be
that other called either bond or free, is liable
to be prosecuted for an assault and battery, and,
if any one restrains another against his consent,
his freedom may be obtained by a writ of habeas
corpus ? For we think we have proved the prop-
ositions we proposed, to wit:
1. That, whatever may have been the induce-
ment which caused the Constitution of this coun-
try to be formed, -- whether it was, as Mr. Ames
stated in a speech delivered in the congress of
1789, that it had “been often justly remarked,
that the Constitution under which we deliberate
originated in commercial necessity,” or whatever
else may have been the cause with some, – the
people determined that their individnal rights
should not be invaded, and that no constitution
should be formed that put the liberty of the indi-
vidual in danger. In fact, they took for granted
U
36*
426
CONCLUSION.
the principles of the Declaration of Independence ;
but the necessities of the country were such, both
with regard to its internal and external wants, it
was thought necessary to form a more perfect
union, the better to secure the rights and liberties
of each and all. In order to effect these objects,
it was found necessary for the States to surrender,
in the last resort, the liberty of the individual to
the care of the general government, that, when
the States could not or-would not protect him,
then the general government, with its ample ahili-
ties and powers, could step in and do it; and that,
while this general government was empowered to
secure the general welfare, it was prevented, not
only in the body of the Constitution, but more
particularly in the amendments, from interfering
with certain rights; believing, as we suppose they
must have believed, it would never be for the
general welfare that the particular rights enume-
rated, with others not so, should be encroached
upon; and, whatcver compromises there may have
been on other subjects, no comproinise was made
involving the liberty of the individual.
2. That the subject of slavery was fully com-
mented upon, and the Constitution was formed
with the full understanding of its nature, and the
people of that day did 110t and would not, in any
shape, give their sanction to the system; but, ow-
ing to the strong opposition rnade by South Carolina
and Georgia, and by their earnest solicitations, con-
gress consented that, for twenty years, they would
not put a stop to the introduction of any one whom
CONCLUSION.
427
the States might think fit to introduce; or, if you
will, they would not put a stop to the slave-trade,
though they would not pollute the parchment on
which it was written by writing on it such a sen-
tence : while all the other provisions of the Con-
stitution might have gone into immediate action,
such as liberty of speech, of the press; the peace-
ably assembling together of the people, to consult
on any subject concerning their welfare, without
excepting the colored man; the petitioning of
congress; the right to be secure in their persons,
houses, papers, and effects; nor be held to answer
for any capital or other infamous crime, without
first presentment of a grand jury; nor be exces-
sively fined, nor have any cruel or unusual pun-
ishment inflicted ; nor be deprived of life, liberty,
or property, without due process of law, &c. : so
that, if the colored population, in their individual
capacity, had sought redress for their individual
grievances, they could have obtained them, if the
courts had done their duty from that time to the
present. But, if the combination against the rights
of any individual or individuals should, at any
time, become of such inagnitude as to require the
interposition of congress, then, -
3. Congress had power conferred on them by
the people to restore those rights, not only in the
preamble to the Constitution, but in the amend-
ments, where many of our inalienable rights are
specially enumerated; the preamble being the
only authentic account we have, stating for what
purposes the Constitution was formed; and the
428
CONCLUSION.
different articles and sections show how these par-
ticular and special purposes are to be carried into
effect; and if any individual or any of the States
should make use of any thing in these articles or
sections to allow practices inconsistent with the
object and intent for which the union was said to
be expressly designed; or should, in violation of
any of them, infringe on these rights, to prevent,
if possible, a physical interference by the govern-
ment, then,-
4. The United States Court was established for
'the purpose of deciding, in all cases that might be
brought before it, when the rights and liberties of
the State, or the inalienable rights of the indi-
vidual of the States, might be called in question.
That they were to be the tribunal in the last resort,
and their decisions were to be backed by all the
civil and military power of the country, if their
decisions were not conformed to in a peaceable
manner; and the result was, and is, that each and
every individual in the country could, and can,
look to the general government of the United
States for the preservation of his inalienable rights,
instead of, as he had done under the Confederation,
to the State governments; and that this consti-
tutes the distinctive character between the Union
and the Confederacy, - the States, as was al-
ledged, being incompetent, or unwilling, in their
confederate capacity, to shield the individual in
the different States either from external or inter-
nal foes. Shays's rebellion in Massachusetts, the
whisky rebellion in Pennsylvania, the non-com-
CONCLUSION.
429
1
10
pliance with the requisitions of congress by differ-
ent States, the dangers that might arise from in-
surrections of the slaves, the rapacity of for-
eign governments, and the ambition that might
actuate individuals, were brought forward as evi-
dences.
The government would not perinit a general in-
surrection, either of slaves or any other people,
when they had provided for securing the rights of
every individual by civil processes. But if these
civil processes should ever become so corrupt that
the people could not obtain their rights, or if they
should ever be so perverted as to give unjust
judgments, their own practices and their Declara-
tion of Independence acknowledged the right of
revolution.
Here, then, we think, is the true theory of our
government. It was “established and ordained
by the people” for good and beneficial purposes,
not for evil or ambitious ones; to defend them-
selves from the evil designs of foreign govern-
ments, from the pretensions of any one or more of
the States, or any individual of any of the States,
and to quell any popular insurrection the State
governments could not quell, or asked assistance to
quell; but, in order to effect these purposes, they
could not interfere at all with certain rights, and
no natural right, but by due course of law ;'so that
every individual of the land has the power to call
on the civil government in the first place to protect
him in his lawful undertakings, and he may exer-
cise the liberty of speech and of the press to main-
430
CONCLUSION.
]
tain himself in these rights; and, if the courts of the
civil government cannot protect him, then he may,
through the courts, call upon all the physical power
of the country so to do, whether that individual be
white or black, bond or free. And we suspect
much of the excitement we have of late heard
about State rights arises from the idea whether
each individual shall, in the last resort, or ultimate-
ly, look to the State in which he resides, or to the
general government, for protection.
The Southern States, or rather individuals of
the Southern States, not wishing that the liberty of
every individual should be secured, and wanting
to found their governments on rapine, and not for
the good or the whole, have been anxious for State
rights, that a certain class might act as they
pleased, independently of the rights of certain
others. That is, they wish to hold slaves by law,
and they now know no law can support them in
it; for we find neither a Hayne, nor a McDuf-
fie, nor a Preston, nor a Calhoun, nor a Clay,
have ever dared to enter on a discussion of the
right of the southern people, under the Constitu-
tion, to hold slaves, or the constitutionality of the
thing. They never have presumed to state wherein
any compact lies, or to enter into an argument on
the subject; they have left this for clergymen to
do; but, when they are pressed, they apply the
gag; "hanging without benefit of clergy" are the
premises, and the conclusion of all their reasoning,
if reasoning they have ever given. Is it not so ?
If the purposes of the Constitution, as expressed
D
CONCLUSION.
431
in the preamble, can be faithfully carried out, we
would go for it, as it is. So far as human govern
ments are concerned, we know of none established
on better principles. We are not anxious for a
change, saving where any doubt exists, as to the
intent and meaning of the phraseology of the Con-
stitution : that phraseology might be altered, if it
would have any tendeney better to secure the
rights of the individual.
But after all we have said, it may be argued
that the Magna Charta of England, although it
says "to no man will we [the government] sell, de-
ny, or delay justice and right," " yet it never freed
a slave;" and they would argue from this our Con-
stitution would or should not. But it may be asked,
did ever a slave, as a slave, ask of the governments,
through the courts, to relieve him from his bonds ?
we suspect not often. Those who have adminis-
tered the law have been very careful never to let
a slave's voice be heard in a court of justice; or,
if it has been heard, as in Massachusetts, and in
the case of Sommersett in England, freedom has
been given. The magistrates, in some of our States,
who have delivered up runaway slaves, have, we
suspect, done it without due regard to the inherent
right of him who has been claimed, and without
inquiring, as in the words of the Constitution,
whether the service or labor was due.
But, if a slave should go into a lawyer's office in
any of our Southern States, and make the inquiry
whether his master, under our Constitution, held
any constitutional right over him, would the
432
CONCLUSION.
lawyer venture to give him any legal advice ?
or would he not rather direct him to the door, and
let the poor fellow ascertain his rights as best he
could? Without doubt, the latter service would
be rendered much oftener than the former.
If, then, our conceptions are right of the nature
of our Constitution, we would ask, with all due
seriousness, are we going to change it? Are we
going to precipitate our country into a worse than
a savage state? Is it wanted to bring upon this
land the darkness of heathenism to produce a state
of society as degraded as that of the most be-
nighted nation on earth ;' and, as a consequence,
prevent the anticipations of the great and good
men, who desired to restore man to his long lost
rights, from being ever realized ?' Must the blood
and treasure that has been so profusely expended
have gone for naught? Is there no way to pre-
vent such a catastrophe ? Must it be this conti-
nent is to be turned into a great piggery, a great
sty, for the purpose of raising man, immortal man,
to be sold as the brute, to be yoked and fettered,
and driven about like the ox or the swine ? and
though not yet consumed like them, yet is there
any certainty we shall not so find it? If we can
already suppose he can take the place of the lower
animals in so many ways, may he not in all ?
There are cannibals in the world ; and is there
any surety, if we depart from the principle of the
immortality of man, and herd him with the brute,
we shall consider him any thing more than a brute,
and treat him as such? Is it, we say, for such
CONCLUSION.
433
purposes this continent was given to the Anglo-
Saxon race, that the wild man of the woods
driven out before him, that he might take his
place to exercise such a foul dominion? Can it be
God designed such a consummation? Can it be he
permitted those who worshipped him, though iga
norantly, and much superstition and barbarism
were mingled with their devotions, but who roamed
with freedom throughout this panorama of beauty,
and sent forth their orisons in praise of him who
created it, to be driven out to give place to a race
who would treat his image with contempt, and
cause all knowledge of himself and his govern-
ment to be lost, that man's brutish passions might
be pampered, and that distress, and pain, and
anguish, and heart burnings, and tears, and blood,
should take the place of such devotions? God
forbid ! it cannot be. No! The system of slavery
must be broken up! Our southern friends cannot
look upon such a picture, and such a true picture,
without quailing; they must shrink back from
contemplating the horrid results of their course of
action! they cannot continue to support a system
which they must see is leading to inevitable
destruction, so unworthy of men, so derogatory to
right, so opposed to Christianity, to humanity, and
the laws of God!
Under cover of all their opposition, we cannot
but think there lurks a consciousness they are
committing a wrong; and, if they have this con-
sciousness, they will, sooner or later, exercise it.
They will not be guilty of so outraging the pur-
37
434
CONCLUSION.
poses of the Deity; they will not change this
paradise into a hell, where every foul bird, and
that that maketh a lie hovers and deceives! No,
we will think better things of our neighbors, and
trust, though we have at times had our faith
shaken, that, since they have had their attention
so thoroughly aroused by the thousand publica-
tions on the subject, they will repent, and restore
their brother man to that dignity which our Con-
stitution, nature, and God, hath designed him.
If, however, this is not to be the end, and our
courts decide the descendants of Africa are to be
thrown out of all government protection, that they
are to be left to the mercy of irresponsible men to
treat them as they list, or even to the tender mer-
cies of a State, when that State can use the bar-
barity towards them that Alabama, Arkansas, and
Missouri have done, in commanding all free colored
people to leave their several States under heavy
penalties, or making it impossible for them to be
freed; better these United States be broken up at
once; we see no object in their union! The pur-
poses for which the union was designed is not the
actuating one for which it is to be continued,
and it should be so understood. In the original
design, the liberty of all persons was to be se-
cured; in the present, only a part; for if the
descendants of the African race can now be
made slaves without remorse, it cannot be long
before the descendants of the Anglo-Saxon will be,
if they are not already, under the same disabilities,
with as little compunction of conscience, and the
1
1
CONCLUSION.
435
AY
fears of Patrick Henry will be more than realized.
But, as we have remarked before, we do not believe
this will be the case; and we trust we shall yet be
able to say these United States will do what Mrs.
Hannah More said England would, during the
contest for destroying the legality of the slave-
trade :
"Shall Britain, where the soul of freedom reigns,
Forge chains for others she herself disdains ?
Forbid it, Heaven! O let the nations know.
The liberty she tastes she will bestow;
Not to hersell the glorious giſt confined,
She spreads the blessing wide as human kind,
And, scorning narrow views of time and place,
Bids all be free in earth's extended space.
What page in human annals can record
A deed so bright as human rights restored ?
O may that godlike deed, that shining page,
Redeem our fame and consecrate our age;
And let this glory mark our favored shore,
To curb ſalse freedom, and the true restore !
And see the cherub MERCY, from above
Descending, softly quits the sphere of love!
On Britain's Isle she sheds her heavenly dew,
And breathes her spirit o'er the favored few;
From soul to soul the generous influence steals,
Till every breast the soft contagion feels.
She speeds exulting to the burning shore,
With the best message angels ever bore;
Hark! 't is the note that gave a Saviour's birth, -
Glory to God on high, and peace on earth!
As the mild spirit hovers o'er the coast,
A fresher hue the withered landscape boasts :
Her healing smiles the ruined scenes repair,
And blasted nature wears a joyous air,
Whilst she proclaims through all her spicy groves,
Henceforth your fruits, your labors, and your loves,
All that your sirès possessed or you have sown,
Sacred from plunder, all is now your own.”
APPE N D I X.
The following are the resolutions passed at the
Green Dragon, alluded to on page 161 of this work :
“ Boston, January 7, 1788.
6 Agreeably to an advertisement inserted in the papers
of this day, the tradesmen of this town met at Mason's
Hall, Green Dragon, at 6 o'clock, P. M. when John
Lucas, Esq. was chosen moderator; and, after some
discussion, the moderator, Paul Revere, Esq. and Mr.
Benjamin Russell, were chosen to draft certain resolu-
tions expressive of the sense of this body. The com-
mittee, after having retired, returned, and reported the
following, which, being read, was unanimously accepted,
and voted to be printed in the several public papers,
namely:
“Whereas some persons, intending to injure the repu-
*tation of the tradesmen of this town, have asserted that
they were unfriendly and adverse to the adoption of the
Constitution of the United States of America, as pro-
posed on the 17th of September last, by the convention of
the United States assembled in Philadelphia, — therefore,
to manifest the falsehood of such assertions, and to dis-
cover to the world our sentiments of the proposed frame
of government,
“Be it resolved,
51. That such assertions are false and groundless,
438
APPENDIX.
and it is the sense of this body, that all those who propa-
gate such reports have no other view than the injury of
our reputation, or the attainment of their own wicked
purposes, on base and false ground.
62. That, in the judgment of this body, the proposed
frame of government is well calculated to secure the
liberties, protect the property, and guard the rights, of
the citizens of America ; and it is our warmest wish and
prayer that the same should be adopted by the common-
wealth.
63. That it is our opinion, if said Constitution should
be adopted by the United States of America, trade and
navigation will revive and increase, employment and
şubsistence will be afforded to many of our townsmen
who are now suffering from want of the necessaries of
life ; that it will promote industry and morality, render
us respectable as a nation, and procure us all the bless-
ings to which we are entitled from the natural wealth of
our country, our freedom, and independence.
“4. That it is the sense of this body, that, if the pro-
posed frame of government should be rejected, the small
remains of commerce yet left us will be annihilated ; the
various trades and handicrafts dependent thereon must
decay ; our poor will be increased, and many of our
worthy and skilful mechanics compelled to seek employ-
ment and subsistence in strange lands.
665. That, in the late election of delegates to represent
this town in convention, it was our design, and, in the
opinion of this body, the design of every good man in
town, to elect such men, and such only, as would exert
their utmost ability to promote the adoption of the pro-
posed frame of government in all its parts, without
any conditions, pretended amendments, or alterations
whatever; and that such, and such only, will truly ·
represent the feelings, wishes, and desires, of their con:
APPENDIX
439
stituents; and if any of the delegates of this town should
oppose the adoption of said frame of government in
gross, or under pretence of making amendments, or al-
terations, of any kind, or of annexing conditions to their
acceptance, such delegate, or delegates, will act contrary
to the best interests, the strongest feelings, and the
warmest wishes, of the tradesmen of the town of Boston.”
John Lucas, per order.
The above resolutions being passed, John Lucas,
Esq. Mr. Joseph Clark, Paul Revere, Esq. Mr.
Rhodes, Mr. Wm. Boardman, Joshua Witherell,
Esq. and Capt. David Spear, were appointed a
standing committee, to notify a meeting of the
tradesmen of this town in future. After which
the meeting was dissolved. On the 9th of January,
the convention assembled in Boston to take into
consideration the adoption of the Constitution.
DECISION OF THE COURT OF ERROR AND APPEAL IN
PENNSYLVANIA.
Before the Court of Error and Appeals, of Penn-
sylvania, composed of a judge specially appointed
for that court, and the judges of the Supreme Court,
and the presidents of the Court of Common Pleas,
nine judges, of whom were present on the trial
Benjamin Chew, the judge specially appointed,
Edward Shippen, chief justice. Slave vs. Gras-
440
APPENDIX.
APPENDIX.
berry. Glentworth, the representative for Gras-
berry; Wm. Lewis, and Wm. Rawle, and Edward
Tilman, for the plaintiff; Moses Levy, Joseph
B. McKein, and Jasper Moylan, for the defend-
ant.
In this trial the ground was taken by the plain-
tiff at a suit commenced by the Abolition Society
of Pennsylvania, slavery did not exist in that
State under the Constitution of the United States,
and the Constitution of that State.
Judge Chew, in giving the opinion of the court,
said it was their unanimous opinion that slave-
ry did constitutionally exist in that State. My
informer, Mr. Isaac T. Hopper, observed that the
judge remarked he would not keep the public one
moment in suspense, in letting them know such
was the opinion of the court, but they would give
the reasons for such a decision at some future time;
which reasons, however, were never given. On the
contrary, Judge Chew, who owned a plantation
with slaves in Maryland, and consequently was at
the time a holder of slaves, shortly after manu-
mitted them; and, when asked, did not give any
reasons for so doing.
0

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