The law of Louisiana makes slaves real estate, prohibiting the holder, if he be also a land holder, to separate them from the soil.[[A]] If it has power to prohibit the sale without the soil, it can prohibit the sale with it; and if it can prohibit the sale as property, it can prohibit the holding as property. Similar laws exist in the French, Spanish, and Portuguese colonies. The law of Louisiana requires the master to give his slaves a certain amount of food and clothing. If it can oblige the master to give the slave one thing, it can oblige him to give him another: if food and clothing, then wages, liberty, his own body. By the laws of Connecticut, slaves may receive and hold property, and prosecute suits in their own name as plaintiffs: [This last was also the law of Virginia in 1795. See Tucker's "Dissertation on Slavery," p. 73.] There were also laws making marriage contracts legal, in certain contingencies, and punishing infringements of them, ["Reeve's Law of Baron and Femme," p. 340-1.]
[Footnote [A]: Virginia made slaves real estate by a law passed in 1705. (Beverly's Hist. of Va., p. 98.) I do not find the precise time when this law was repealed, probably when Virginia became the chief slave breeder for the cotton-growing and sugar-planting country, and made young men and women "from fifteen to twenty-five" the main staple production of the State.]
Each of the laws enumerated above, does, in principle, abolish slavery; and all of them together abolish it in fact. True, not as a whole, and at a stroke, nor all in one place; but in its parts, by piecemeal, at divers times and places; thus showing that the abolition of slavery is within the boundary of legislation.
In the "Washington (D.C.) City Laws," page 138, is "AN ACT to prevent horses from being cruelly beaten or abused." Similar laws have been passed by corporations in many of the slave states, and throughout the civilized world, such acts are punishable either as violations of common law or of legislative enactments. If a legislature can pass laws "to prevent horses from being cruelly abused," it can pass laws to prevent men from being cruelly abused, and if it can prevent cruel abuse, it can define what it is. It can declare that to make men work without pay is cruel abuse, and can PROHIBIT it.
5. THE COMPETENCY OF THE LAW-MAKING POWER TO ABOLISH SLAVERY, HAS BEEN RECOGNIZED BY ALL THE SLAVEHOLDING STATES, EITHER DIRECTLY OR BY IMPLICATION. Some States recognize it in their Constitutions, by giving the legislature power to emancipate such slaves as may "have rendered the state some distinguished service," and others by express prohibitory restrictions. The Constitution of Mississippi, Arkansas, and other States, restrict the power of the legislature in this respect. Why this express prohibition, if the law-making power cannot abolish slavery? A stately farce indeed, with appropriate rites to induct into the Constitution a special clause, for the express purpose of restricting a nonentity!--to take from the law-making power what it never had, and what cannot pertain to it! The legislatures of those States have no power to abolish slavery, simply because their Constitutions have expressly taken away that power. The people of Arkansas, Mississippi, &c. well knew the competency of the law-making power to abolish slavery, and hence their zeal to restrict it.
The slaveholding States have recognised this power in their laws. Virginia passed a law in 1786 to prevent the importation of Slaves, of which the following is an extract: "And be it further enacted that every slave imported into this commonwealth contrary to the true intent and meaning of this act, shall upon such importation become free." By a law of Virginia, passed Dec. 17, 1792, a slave brought into the state and kept there a year, was free. The Maryland Court of Appeals, Dec., 1813 [case of Stewart vs. Oakes,] decided that a slave owned in Maryland, and sent by his master into Virginia to work at different periods, making one year in the whole, became free, being emancipated by the above law. North Carolina and Georgia in their acts of cession, transferring to the United States the territory now constituting the States of Tennessee, Alabama and Mississippi, made it a condition of the grant, that the provisions of the ordinance of '87 should be secured to the inhabitants, with the exception of the sixth article which prohibits slavery; thus conceding, both the competency of law to abolish slavery, and the power of Congress to do it, within its jurisdiction. (These acts show the prevalent belief at that time, in the slaveholding States, that the general government had adopted a line of policy aiming at the exclusion of slavery from the entire territory of the United States, not included within the original States, and that this policy would be pursued unless prevented by specific and formal stipulation.)
Slaveholding States have asserted this power in their judicial decisions. In numerous cases their highest courts have decided that if the legal owner of slaves takes them into those States where slavery has been abolished either by law or by the constitution, such removal emancipates them, such law or constitution abolishing their slavery. This principle is asserted in the decision of the Supreme Court of Louisiana, Lunsford vs. Coquillon, 14 Martin's La. Reps. 401. Also by the Supreme Court of Virginia, Hunter vs. Fulcher, 1 Leigh's Reps. 172. The same doctrine was laid down by Judge Washington, of the U. S. Sup. Court, Butler vs. Hopper, Washington's C. C. Reps. 508; also, by the Court of Appeals in Kentucky, Rankin vs. Lydia, 2 Marshall's Reps. 407; see also, Wilson vs. Isbell, 5 Call's Reps. 425, Spotts vs. Gillespie, 6 Randolph's Reps. 566. The State vs. Lasselle, 1 Blackford's Reps. 60, Marie Louise vs. Mariot, 8 La. Reps. 475. In this case, which was tried in 1836, the slave had been taken by her master to France and brought back; Judge Matthews, of the Supreme Court of Louisiana, decided that "residence for one moment" under the laws of France emancipated her.
6. EMINENT STATESMEN, THEMSELVES SLAVEHOLDERS, HAVE CONCEDED THIS POWER. Washington, in a letter to Robert Morris, April 12, 1786, says: "There is not a man living, who wishes more sincerely than I do, to see a plan adopted for the abolition of slavery; but there is only one proper and effectual mode by which it can be accomplished, and that is by legislative authority." In a letter to Lafayette, May 10, 1786, he says: "It (the abolition of slavery) certainly might, and assuredly ought to be effected, and that too by legislative authority." In a letter to John Fenton Mercer, Sept. 9, 1786, he says: "It is among my first wishes to see some plan adopted by which slavery in this country may be abolished by law." In a letter to Sir John Sinclair, he says: "There are in Pennsylvania, laws for the gradual abolition of slavery, which neither Maryland nor Virginia have at present, but which nothing is more certain than that they must have, and at a period not remote." Jefferson, speaking of movements in the Virginia Legislature in 1777, for the passage of a law emancipating the slaves, says: "The principles of the amendment were agreed on, that is to say, the freedom of all born after a certain day; but it was found that the public mind would not bear the proposition, yet the day is not far distant when it must bear and adopt it."--Jefferson's Memoirs, v. i. p. 35. It is well known that Jefferson, Pendleton, Mason, Wythe and Lee, while acting as a committee of the Virginia House of Delegates to revise the State Laws, prepared a plan for the gradual emancipation of the slaves by law. These men were the great lights of Virginia. Mason, the author of the Virginia Constitution; Pendleton, the President of the memorable Virginia Convention in 1787, and President of the Virginia Court of Appeals; Wythe was the Blackstone of the Virginia bench, for a quarter of a century Chancellor of the State, the professor of law in the University of William and Mary, and the preceptor of Jefferson, Madison, and Chief Justice Marshall. He was the author of the celebrated remonstrance to the English House of Commons on the subject of the stamp act. As to Jefferson, his name is his biography.
Every slaveholding member of Congress from the States of Maryland, Virginia, North and South Carolina, and Georgia, voted for the celebrated ordinance of 1787, which abolished the slavery then existing in the Northwest Territory. Patrick Henry, in his well known letter to Robert Pleasants, of Virginia, January 18, 1773, says: "I believe a time will come when an opportunity will be offered to abolish this lamentable evil." William Pinkney, of Maryland, advocated the abolition of slavery by law, in the legislature of that State, in 1789. Luther Martin urged the same measure both in the Federal Convention, and in his report to the Legislature of Maryland. In 1796, St. George Tucker, of Virginia, professor of law in the University of William and Mary, and Judge of the General Court, published a dissertation on slavery, urging the abolition of slavery by law.
John Jay, while New-York was yet a slave State, and himself in law a slaveholder, said in a letter from Spain, in 1786, "An excellent law might be made out of the Pennsylvania one, for the gradual abolition of slavery. Were I in your legislature, I would present a bill for the purpose, and I would never cease moving it till it became a law, or I ceased to be a member."