USA > Georgia > The bench and bar of Georgia: memoirs and sketches. With an appendix, containing a court roll from 1790-1857, etc., volume II > Part 23
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" pass by us As the idle wind, which we respect not."
They are "barbless arrows shot from bows unstrung!" The slave-holding States have not brought this calamity upon themselves. They have not voluntarily assumed this burden. It was fastened upon them by the mother-country, notwithstanding the most earnest entreaties and expostu- lations. And, if gentlemen were well acquainted with the true state of slavery in the South, (I speak particularly of Georgia, for my information extends little farther,) I am very sure their understandings would acquit us of the charges which their imaginations prefer.
An honorable gentleman from Virginia (Mr. Smyth) remarked yester- day, incidentally, that the debate of the last session upon this subject
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occasioned Georgia to interdict emancipation by an act of her Legislature. The honorable gentleman has been misinformed. The act of 1818, to which he has allusion, was designed more completely to carry into effect the pro- visions of a law prescribing the manner of manumitting, and which had been enacted several years before. It may be proper to remark that the discussion of the bill to admit Missouri had its commencement at the last Congress, some time after the adjournment of the Georgia Legislature. Certain it is that the statute-book of that State contains no law by which it is declared that slaves cannot be made free.
Sir, the slaves of the South are held to a service which, unlike that of the ancient villein, is certain and moderate. They are well supplied with food and raiment. They are "content, and careless of to-morrow's fare." The lights of our religion shine as well for them as for their masters; and their rights of personal security, guaranteed by the Constitution and the laws, are vigilantly protected by the courts. It is true, they are often made subject to wanton acts of tyranny; but this is not their peculiar misfortune. For, search the catalogue of crimes, and you will find that man -- the tyrant-is continually preying upon his fellow-man ; that there are as many white as black victims to the vengeful passions and the lust of power ! Believe me, sir, I am not the panegyrist of slavery. It is an unnatural state,-a dark cloud which obscures half the lustre of our free institutions ! But it is a fixed evil, which we can only alleviate. Are we called upon to emancipate our slaves ? I answer, their welfare-the safety of our citizens-forbid it. Can we incorporate them with us, and make them and us one people ? The prejudices of the North and of the South rise up in equal strength against such a measure; and even those who clamor most loudly for the sublime doctrines of your Declaration of Independence, who shout in your ears, " All men are by nature equal !" would turn with abhorrence and disgust from a parti-colored progeny ! Shall we then be blamed for a state of things to which we are obliged to submit ? Would it be fair, would it be manly, would it be generous, would it be just, to offer contumely and contempt to the unfortunate man who wears a cancer in his bosom, because he will not submit to cautery at the hazard of his existence? For my own part, surrounded by slavery from my cradle to the present moment, I yet
" Hate the touch of servile hands ; I loathe the slaves who cringe around ;"
and I would hail that day as the most glorious in its dawning which should behold, with safety to themselves and our citizens, the black popu- lation of the United States placed upon the high eminence of equal rights and clothed in the privileges and immunities of American citizens. But this is a dream of philanthropy which can never be fulfilled ; and whoever shall act, in this country, upon such wild theories, shall cease to be a benefactor, and become a destroyer of the human family.
It is said, however, to be high time to check the progress of this evil, and that this may best be done by inhibiting slavery beyond the Missis- sippi, and particularly in Missouri, which prays to be admitted as a State into the Union. It is important to consider if this project be consistent with the Constitution of the United States. The States formed the Con- stitution, in the capacity of sovereign and independent States; and the Constitution is the instrument by which they conveyed certain powers to a General Government. This is evident, not only from the nature of the
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Government formed, and in every line of the Constitution, but it is a doctrine distinctly asserted in the ninth and tenth articles of the amend- ments :- "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people;" and, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Hence it will follow that the several States retain every power not delegated by the Constitution to the General Government; or, in other words, that in all unenumerated cases the several States are left in the full enjoyment of their sovereign and independent jurisdictions. The author of the Federalist (which work is admitted to contain a correct exposition of the principles of the Constitution) has said "that, with respect to the extent of its powers, the Government cannot be deemed national, since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects." In aid of this conclusion, if any thing were necessary to sustain it, it may be cited, as a maxim of sound national law, that sovereign States can only be deprived of their rights by voluntary consent or by conquest. It would seem, then, that the Constitution must be construed strictly whenever the rights of the State sovereignties become the subject of dispute; and strictly where the right of personal liberty, personal security, or private property are questioned .* Because the citizen of the United States is the citizen also of another independent Government, whose laws he is bound to obey, unless where this duty has been transferred to the General Government by the express words of the Constitution itself. If it were otherwise, we should find the United States continually engaged in a struggle with the States, to enforce the obedi- ence of the citizen. Such contests, it is easy to perceive, would tarnish, if not destroy, the golden chain by which our federative Government is held together. They would lead to gradual usurpations of power, by which your Constitution would be made a dead letter and your repub- lican institutions exist only in name. Proceeding upon these principles, let us endeavor to ascertain in what part of the Constitution that power is delegated which would authorize you to adopt the amendment proposed by the member from New York.
The grant of powers to the Congress is chiefly contained in the eighth section of the first article ; and you will certainly not find therein any au- thority to inhibit slavery in any part of the Union, in any Territory, or in any State about to be admitted into the Union.
The ninth section commences with this clause :- "The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited prior to the year 1808, but a tax or duty may be imposed on such importation not exceeding ten dollars for each person." It may be said, very plausibly, that the words "migration" and "importation" are here used synonymously ; but let us give to every word in the clause an appropriate meaning, and then we will see whether the word " migration" is the little source whence mighty effects of evil are to flow upon the country. Certainly the framers of the Constitution desired to destroy a traffic of all others the most cruel and iniquitous,-a trade stained by the blood and drenched in the tears of humanity ! By inhibiting "the importation, after 1808, of such persons as any of the
* Vide Tucker's Blackstone.
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States then existing thought proper to admit," it was intended to convey a power to prevent the introduction of Africans into the United States. By inhibiting the "migration," after 1808, of such persons,-for the Constitution, it appears to me, still refers to Africans, and I express this. opinion with deference and humility,-may it not have been intended the more effectually to provide against evasions of the laws interdicting the importation of slaves? The object was to prevent the accumulation of this species of property. It was well known to the founders of our Go- vernment that so soon as the importation was declared to be illegal the slave-merchant would resort to every artifice which ingenuity and avarice could devise for the purpose of effecting a violation of the laws. Suppose him to place his slaves upon a foreign territory adjacent to the United States. They are permitted, or instructed, to pass the boundary, and when within our limits an associate in villany is ready to receive them. In the possession of this person they are found, and he is put upon his trial for importing contrary to law. He defends himself by proving an alibi,-by showing, as far as negative proof can show, that he had in no wise been concerned in the importation. But it is objected that the fact of possession, with the circumstances of language and complexion, will produce an inference of his guilt not to be mistaken. What then ? Base as he is, will he not intrench and fortify himself by perjuries and subor- nations of perjury ? Will he not make out a case by which it shall appear that the victims of his cupidity sought a protection which he could not withhold ? that they migrated, and were not imported ? What then is the effect of the United States statute, which only probibits importation ? The strict construction of a penal law will not permit it to reach the case. The result must be that the luckless Africans are left to the operation of the State laws, and in all probability sold as slaves,-thereby advancing the evil which the Legislature was endeavoring to destroy. May it not have been to guard against such frauds, shifts, and artifices that the word "mi- gration" was inserted in the Constitution ? But the meaning of this word is fixed and limited by the express words of the clause in which it occurs :- "The migration of all such persons as any of the States now existing think proper to admit." To what description of persons does the Consti- tution allude? But one of two answers can, it seems to me, be ration- ally returned to this question. The allusion is either to Africans, who were the proper subjects of the slave-trade, or white persons coming from foreign lands. If this be so, how can the Constitutional provision be so far wrested from its purpose as to be made to apply to the removal of slaves from one State to another, or to a Territory,-slaves, who are re- cognised as the objects of property by the Constitution itself ? If the solemn covenant of our liberties can be thus abused, it is no longer to be esteemed oracular; or, if it resemble an oracle, it is only because its re- sponses are involved in doubt and obscurity.
I find nothing more to afford even a colorable pretext for the proposed restriction until we come to these words :- "New States may be admitted into the Union." The single word "may" is supposed to be the depository of the power so anxiously sought; and, it is said, if Congress can admit a new State, the Constitution being silent as to the condition to be imposed, the State about to be admitted may be fastened with any condition not specially interdicted by the Constitution itself. This is a non sequitur. It is a conclusion most lame and impotent,-in direct hostility with the letter as well as the spirit of the Constitution. It is not enough that the VOL. II .- 13
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Constitution is silent to authorize the Congress to speak or to act; for Congress is the creature of the Constitution, and must look to it for open, declared, and positive direction. What the Constitution dictates is to be done, what it prohibits is to be avoided; but, when it is silent, Congress possesses not authority to direct citizens or States. These must then be controlled by their own independent Governments. Let it be remembered that the Constitution, being in derogation of State rights, must be con- strued strictly. This clause of the third section of the article, then, only allows to us the power to receive or to reject, without qualification or con- dition, a State making application to be admitted into the Union.
But there is a condition without which a State cannot be admitted into the Union ; and it is to be found in the fourth section of the third article :-- " The United States shall guarantee to every State in this Union a repub- lican form of government." Now, "guarantee" means, if I at all under- stand the signification of words, "to undertake that certain stipulations shall be performed." These stipulations can only be found in the Con- stitutions of the States, where they must constitute a "republican form of government." If this be so, then, at the moment a new State is admitted the same guarantee which applies to the original States extends to her also. She must, consequently, have been in the possession of "a republican form of government" at the time of entering the Union; because it would be pre- posterous to imagine that to be guaranteed of which she was not possessed,- that to be secured to her which, in fact, had no existence. It results, then, that without "a republican form of government" a State cannot come into the Confederacy; and is not the necessity to possess it a sine qua non, or condition without which the new State cannot be admitted ? Sir, this condition, being expressed, operates to the exclusion of every other. " Expressio unius est exclusio alterius" is a sound maxim both of common law and common sense.
But, it is objected, slavery is incompatible with that "republican form of government" which the State admitted must possess. We must receive words according to the intention of those who utter them. And we must give construction to the Constitution by considering all the parts of that instrument together. South Carolina and Georgia were slave-holding States at the time the Constitution was framed and adopted; and yet, in its eye, these were considered to possess republican forms of government. Besides, the right of the citizen to possess slaves is expressly recognised by the instrument of which we speak. I need scarcely advert to the second section of the first article, wherein the representation is deter- mined; to the permission to import until a given period, in the ninth section of the first article ; and to the second section of the second article, where the relations of master and servant are distinctly asserted. It is evident, then, that a state of domestic slavery was entirely out of view when the founders of the Confederation determined to " guarantee to the several States a republican form of government."
The Constitution of the United States is plain and simple. It requires no superiority of intellect to comprehend its dictates; it is addressed to every understanding; "he who runs may read." It is, then, a proof of the absence of all authority for the proposed measure, when its advo- cates, and some, too, of great names, fly from clause to section, and from section to article, without finding "rest for the sole of the foot;" without fixing or agreeing upon any one line, phrase, or sentence whence this power for which all contend may be brought into existence. And it is
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,
perfectly natural that this effect should be produced. A search for the philosopher's stone might as soon be expected to end in certainty.
But it is argued that Congress has ever imposed restrictions upon new States, and no objection has been urged until this moment. If it be true that only one condition can constitutionally be imposed, it would seem that any other is null and void, and may be thrown off by the State at pleasure. And then this argument, the strength of which is in precedent, cannot avail. Uniformity of decision for hundreds of years cannot make that right which at first was wrong. If it were otherwise, in vain would science and the arts pursue their march toward perfection ; in vain the constant progress of truth; in vain the new and bright lights which are daily finding their way to the human mind, like the rays of distant stars, which, passing onward from the creation of time, are said to be con- tinually reaching our sphere. Malus usus abolendus est. When error appears, let her be detected and exposed, and let evil precepts be abolished.
It is true that the old Confederation, by the sixth section of the ordi- nance of 1787, inhibited slavery in the territory northwest of the Ohio, and that the States of Illinois, Ohio, and Indiana have been introduced into the Union under this restriction.
Sir, the ordinance of '87 had an origin perfectly worthy of the end it seems destined to accomplish. It had no authority in the articles of con- federation which did not contemplate, with the exception of Canada, the acquisition of territory. It was in contradiction of the resolution of 1780, by which the States were allured to cede their unlocated lands to the General Government, upon the condition that these should constitute several States, to be admitted into the Union upon an equal footing with the original States. It is in fraud of the acts of cession by which the States conveyed territory in faith of the resolution of '80; and, when recognised by acts of Congress and applied to the States formed from the territory beyond the Ohio, it is in violation of the Constitution of the United States. So much for the efficacy of the precedent, which, although binding here, is not, it would seem, of obligation upon Ohio, Indiana, or Illi- nois, or, if you impose it, upon Missouri. It is not the force of your legal provisions which attaches the restrictive sixth article of the ordinance to the States I have mentioned. It is the moral sentiment of the inhabit- ants. Impose it upon Missouri, and she will indignantly throw off the yoke and laugh you to scorn! You will then discover that you have assumed a weapon that you cannot wield,-the bow of Ulysses, which all your efforts cannot bend. The open and voluntary exposure of your weak- ness will make you not only the object of derision at home, but a by-word among nations. Can there be a power in Congress to do that which the object of the power may rightfully destroy ? Are the rights of Missouri and of the Union in opposition to each other ? Can it be possible that Congress has authority to impose a restriction which Missouri, by an alte- ration of her Constitution, may abolish ? Sir, the course we are pursuing reminds me of the urchin who, with great care and anxiety, constructs his card edifice, which the slightest touch may demolish, the gentlest breath dissolve.
But let us stand together upon the basis of precedent, and upon that ground you cannot extend this restriction to Missouri. You have imposed it upon the territory beyond the Ohio, but you have never applied it else- where. Tennessee, Vermont, Kentucky, Louisiana, Mississippi, and Ala-
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bama have come into the Union without being required to submit to the condition inhibiting slavery; nay, whenever the ordinance of '87 has been applied to any of these States, the operation of the sixth article has been suspended or destroyed. According, then, to the uniform tenor of the precedent, let the States to be formed of the territory without the bounda- ries of the territory northwest of Ohio remain unrestricted, and in the enjoyment of the fulness of their rights.
Thus, it appears to me, the power you seek to assume is not to be found in the Constitution or to be derived from precedents. Shall it, then, with- out any known process of generation, spring spontaneously from your councils, like the armed Minerva from the brain of Jupiter? The god- dess, sir, although of wisdom, was also the inventress of war; and the power of your creation, although extensive in its dimensions and ingenious in its organization, may produce the most terrible and deplorable effects. Assure yourselves, you have not authority to bind a State coming into the Union with a single hair. If you have, you may rivet a chain upon every limb, a fetter upon every joint ! Where, then, I ask, is the independence of your State Governments ? Do they not fall prostrate, debased, covered with sackcloth and crowned with ashes before the gigantic power of the Union ? They will no longer, sir, resemble planets, moving in order around a solar centre, receiving and imparting lustre. They will dwindle to mere satellites, or, thrown from their orbits, they will wander "like stars condemned, the wrecks of worlds demolished."
The ordinance of '87 has been called, and is called in your laws, an irre- vocable compact with the good people beyond the Ohio. Sir, there is a compact equally irrevocable,-as I think, more so,-which governs the des- tinies of the extensive region beyond the Mississippi. I mean the treaty of 1803, by which Louisiana was ceded to the United States. This is, indeed, a compact formed by two independent nations, parties able to contract. The ordinance of '87 was a mere legislative provision, by which you bound your vassal, who could not oppose your wishes, who was in your power, and subject to your authority. It possesses not the force and effect of a solemn treaty.
The third article of the treaty declares that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immuni- ties of citizens of the United States."
How are the inhabitants to be "incorporated in the Union of the United States"? Certainly by admitting the territory to which they belong as a State or States into the Union "according to the principles of the Federal Constitution." I confess myself so dull as to be able to give no other construction to the words of the treaty. Argument is of none effect when it attempts to make that which is self-evident still more apparent. These inhabitants are to be placed, too, in a political situation in all respects equal with that of our own citizens. It follows, then, that citizens of the United States having the power, under the Constitution, to possess pro- perty in slaves, and to remove that property whithersoever they will, the check or limit upon this power being imposed only by the State sove- reignties, the inhabitants of Louisiana cannot be fairly in possession of "all the rights, advantages, and immunities of citizens of the United States" unless they possess this also. The treaty of 1803 is the supreme law of the land, and must be obeyed. Obedience consists in admitting
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Missouri, which is a part of the then territory of Louisiana, as a State, into the Union, upon the sole condition that she shall possess a republican form of government.
There are some, I understand, who think Congress has the power to impose this restriction upon the territory of the United States, although it cannot be forced upon a State at the moment of admission, and they find their text in the following words of the Constitution :- "Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory and other property belonging to the United States." Without stopping to inquire how far a provision excluding slavery comes within the meaning of "needful rules and regulations;" how far, under authority to make rules and regulations respecting the territory of the United States, Congress can make laws affecting the rights of property; how far the citizen of the South, who has an equal claim with his brother of the North to the lands on the west of the Mississippi, can be deprived of the constitutional privilege of enjoying his property in that country; it is enough for me that the treaty of 1803 interposes to prevent the en- actment of any condition interfering with the liberty, religion, or property of the inhabitants of Louisiana. The article I have just quoted, after providing for the incorporation of the ceded territory into the Union, runs thus :- " And in the mean time they (the inhabitants) shall be maintained and protected in the free enjoyment of their liberty, property, and the religion they profess." Now, slaves were property at the time of the rati- fication of the treaty, and therefore within its meaning. Giving to the words "in the mean time" the construction they would seem to demand, it must follow that, until the inhabitants are "incorporated in the Union according to the principles of the Federal Constitution," their right to possess this species of property is guaranteed by the treaty. It cannot be said to the slave-holder who becomes an inhabitant of Louisiana, "You shall leave your slaves behind you." His only and conclusive reply is in the words which I have read. He bids you preserve that good faith which the law, the dignity of which is settled by the Constitution, incul- cates. He insists that, upon the instant he becomes an inhabitant of Louisiana, his right to his slaves is both recognised and sanctioned. He surely does not insist in vain, for all civilized governments respect, or affect to respect, the solemnity of their treaties. Can you refuse obedi- ence to this after the high language which you have used toward the Spanish Court? If you do, even the gravity of the adored Ferdinand" will relax into a smile, I dare not say of contempt, but certainly of distrust.
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