The Anti-Slavery Examiner, Omnibus

by American Anti-Slavery Society

7. THE CONGRESS OF THE UNITED STATES HAVE ASSERTED THIS POWER. The ordinance of '87, declaring that there should be "neither slavery nor involuntary servitude," in the North Western territory, abolished the slavery then existing there. The Supreme Court of Mississippi, in its decision in the case of Harvey vs. Decker, Walker's Mi. Reps. 36, declared that the ordinance emancipated the slaves then held there. In this decision the question is argued ably and at great length. The Supreme Court of La. made the same decision in the case of Forsyth vs. Nash, 4 Martin's La. Reps. 395. The same doctrine was laid down by Judge Porter, (late United States Senator from La.,) in his decision at the March term of the La. Supreme Court, 1830, in the case of Merry vs. Chexnaider, 20 Martin's Reps. 699.

That the ordinance abolished the slavery then existing there is also shown by the fact, that persons holding slaves in the territory petitioned for the repeal of the article abolishing slavery, assigning that as a reason. "The petition of the citizens of Randolph and St. Clair counties in the Illinois country, stating that they were in possession of slaves, and praying the repeal of that act (the 6th article of the ordinance of '87) and the passage of a law legalizing slavery there." [Am. State papers, Public Lands, v. 1. p. 69.] Congress passed this ordinance before the United States Constitution was adopted, when it derived all its authority from the articles of Confederation, which conferred powers of legislation far more restricted than those conferred on Congress over the District and Territories by the United States Constitution. Now, we ask, how does the Constitution abridge the powers which Congress possessed under the articles of confederation?

The abolition of the slave trade by Congress, in 1808, is another illustration of the competency of legislative power to abolish slavery. The African slave trade has become such a mere technic, in common parlance, that the fact of its being proper slavery is overlooked. The buying and selling, the transportation, and the horrors of the middle passage, were mere incidents of the slavery in which the victims were held. Let things be called by their own names. When Congress abolished the African slave trade, it abolished SLAVERY—supreme slavery—power frantic with license, trampling a whole hemisphere scathed with its fires, and running down with blood. True, Congress did not, in the abolition of the slave trade, abolish all the slavery within its jurisdiction, but it did abolish all the slavery in one part of its jurisdiction. What has rifled it of power to abolish slavery in another part of its jurisdiction, especially in that part where it has "exclusive legislation in all cases whatsoever?"

8. THE CONSTITUTION OF THE UNITED STATES RECOGNISES THIS POWER BY THE MOST CONCLUSIVE IMPLICATION. In Art. 1, sec. 3, clause 1, it prohibits the abolition of the slave trade previous to 1808: thus implying the power of Congress to do it at once, but for the restriction; and its power to do it unconditionally, when that restriction ceased. Again; In Art. 4, sec. 2, "No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from said service or labor." This clause was inserted, as all admit, to prevent the runaway slave from being emancipated by the laws of the free states. If these laws had no power to emancipate, why this constitutional guard to prevent it?

The insertion of the clause, was the testimony of the eminent jurists that framed the Constitution, to the existence of the power, and their public proclamation, that the abolition of slavery was within the appropriate sphere of legislation. The right of the owner to that which is rightfully property, is founded on a principle of universal law, and is recognised and protected by all civilized nations; property in slaves is, by general consent, an exception; hence slaveholders insisted upon the insertion of this clause in the United States Constitution, that they might secure by an express provision, that from which protection is withheld, by the acknowledged principles of universal law.[^A] By demanding this provision, slaveholders consented that their slaves should not be recognised as property by the United States Constitution, and hence they found their claim, on the fact of their being "persons, and held to service."

[A]: The fact, that under the articles of Confederation, slaveholders, whose slaves had escaped into free states, had no legal power to force them back,—that now they have no power to recover, by process of law, their slaves who escape to Canada, the South American States, or to Europe—the case already cited, in which the Supreme Court of Louisiana decided, that residence "for one moment," under the laws of France emancipated an American slave—the case of Fulton vs.. Lewis, 3 Har. and John's Reps., 56, where the slave of a St. Domingo slaveholder, who brought him to Maryland in '93, was pronounced free by the Maryland Court of Appeals—are illustrations of the acknowledged truth here asserted, that by the consent of the civilized world, and on the principles of universal law, slaves are not "property," and that whenever held as property under law, it is only by positive legislative acts, forcibly setting aside the law of nature, the common law, and the principles of universal justice and right between man and man,—principles paramount to all law, and from which alone law, derives its intrinsic authoritative sanction.

9. CONGRESS HAS UNQUESTIONABLE POWER TO ADOPT THE COMMON LAW, AS THE LEGAL SYSTEM, WITHIN ITS EXCLUSIVE JURISDICTION.—This has been done, with certain restrictions, in most of the States, either by legislative acts or by constitutional implication. THE COMMON LAW KNOWS NO SLAVES. Its principles annihilate slavery wherever they touch it. It is a universal, unconditional, abolition act. Wherever slavery is a legal system, it is so only by statute law, and in violation of the common law. The declaration of Lord Chief Justice Holt, that, "by the common law, no man can have property in another," is an acknowledged axiom, and based upon the well known common law definition of property. "The subjects of dominion or property are things, as contra-distinguished from persons." Let Congress adopt the common law in the District of Columbia, and slavery there is at once abolished. Congress may well be at home in common law legislation, for the common law is the grand element of the United States Constitution. All its fundamental provisions are instinct with its spirit; and its existence, principles, and paramount authority, are presupposed and assumed throughout the whole. The preamble of the Constitution plants the standard of the Common Law immovably in its foreground. "We, the people of the United States, in order to ESTABLISH JUSTICE, &c., do ordain and establish this Constitution;" thus proclaiming devotion to JUSTICE, as the controlling motive in the organization of the Government, and its secure establishment the chief object of its aims. By this most solemn recognition, the common law, that grand legal embodyment of "justice" and fundamental right—was made the Groundwork of the Constitution, and intrenched behind its strongest munitions. The second clause of Sec. 9, Art. 1; Sec. 4, Art. 2, and the last clause of Sec. 2, Art. 3, with Articles 7, 8, 9, and 13 of the Amendments, are also express recognitions of the common law as the presiding Genius of the Constitution.

By adopting the common law within its exclusive jurisdiction Congress would carry out the principles of our glorious Declaration, and follow the highest precedents in our national history and jurisprudence. It is a political maxim as old as civil legislation, that laws should be strictly homogeneous with the principles of the government whose will they express, embodying and carrying them out—being indeed the principles themselves, in preceptive form—representatives alike of the nature and the power of the Government—standing illustrations of its genius and spirit, while they proclaim and enforce its authority. Who needs be told that slavery makes war upon the principles of the Declaration, and the spirit of the Constitution, and that these and the principles of the common law gravitate toward each other with irrepressible affinities, and mingle into one? The common law came hither with our pilgrim fathers; it was their birthright, their panoply, their glory, and their song of rejoicing in the house of their pilgrimage. It covered them in the day of their calamity, and their trust was under the shadow of its wings. From the first settlement of the country, the genius of our institutions and our national spirit have claimed it as a common possession, and exulted in it with a common pride. A century ago, Governor Pownall, one of the most eminent constitutional jurists of colonial times, said of the common law, "In all the colonies the common law is received as the foundation and main body of their law." In the Declaration of Rights, made by the Continental Congress at its first session in '74, there was the following resolution: "Resolved, That the respective colonies are entitled to the common law of England, and especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law." Soon after the organization of the general government, Chief Justice Ellsworth, in one of his decisions on the bench of the United States Supreme Court, said: "The common law of this country remains the same as it was before the revolution." Chief Justice Marshall, in his decision in the case of Livingston vs. Jefferson, said: "When our ancestors migrated to America, they brought with them the common law of their native country, so far as it was applicable to their new situation, and I do not conceive that the revolution in any degree changed the relations of man to man, or the law which regulates them. In breaking our political connection with the parent state, we did not break our connection with each other." [Hall's Law Journal, new series.] Mr. Duponceau, in his "Dissertation on the Jurisdiction of Courts in the United States," says, "I consider the common law of England the jus commune of the United States. I think I can lay it down as a correct principle, that the common law of England, as it was at the time of the Declaration of Independence, still continues to be the national law of this country, so far as it is applicable to our present state, and subject to the modifications it has received here in the course of nearly half a century." Chief Justice Taylor of North Carolina, in his decision in the case of the State vs. Reed, in 1823, Hawkes' N.C. Reps. 454, says, "a law of paramount obligation to the statute, was violated by the offence—COMMON LAW founded upon the law of nature, and confirmed by revelation." The legislation of the United States abounds in recognitions of the principles of the common law, asserting their paramount binding power. Sparing details, of which our national state papers are full, we illustrate by a single instance. It was made a condition of the admission of Louisiana into the Union, that the right of trial by jury should be secured to all her citizens,—the United States government thus employing its power to enlarge the jurisdiction of the common law in this its great representative.

Having shown that the abolition of slavery is within the competency of the law-making power, when unrestricted by constitutional provisions, and that the legislation of Congress over the District is thus unrestricted, its power to abolish slavery there is established.

We argue it further, from the fact, that slavery exists there now by an act of Congress. In the act of 16th July, 1790, Congress accepted portions of territory offered by the states of Maryland and Virginia, and enacted that the laws, as they then were, should continue in force, "until Congress shall otherwise by law provide." Under these laws, adopted by Congress, and in effect re-enacted and made laws of the District, the slaves there are now held.