At the adoption of the Constitution, this rule, promulgated in the Court of King’s Bench by the voice of the most finished magistrate in English history, was as well known in our country as any principle of the Common Law; especially was it known to the eminent lawyers in the Convention; nor is it too much to say that the Constitution was framed with this rule on Slavery as a guide. And the Supreme Court of the United States, at a later day, by the lips of Chief-Justice Marshall, promulgated this same rule, in words stronger even than those of Lord Mansfield, saying: “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”[127] It is well known, however, that these two declarations are little more than new forms for the ancient rule of the Common Law, as expressed by Fortescue: Impius et crudelis judicandus est qui Libertati non favet: “He is to be adjudged impious and cruel who does not favor Liberty,”[128]—and as expressed by Blackstone, “The law is always ready to catch at anything in favor of Liberty.”[129]
But, as no prescription runs against the King, so no prescription is allowed to run against Slavery, while all the early victories of Freedom are set aside by the Slave-Masters of to-day. The prohibition of Slavery in the Missouri Territory, and all the precedents, legislative and judicial, for the exercise of this power, admitted from the beginning until now, are overturned. At last, bolder grown, Slave-Masters do not hesitate to assail that principle of jurisprudence which makes Slavery the creature of “positive law” alone, to be upheld only by words of “irresistible clearness.” The case of Somerset, in which this great rule was declared, is impeached on this floor, as the Declaration of Independence is also impeached. And here the Senator from Louisiana [Mr. Benjamin] takes the lead, with the assertion, that in the history of English law there are earlier cases, where a contrary principle was declared. Permit me to say that no such cases, even if hunted up in authentic reports, can impair the influence of this well-considered authority. The Senator knows well that an old and barbarous case is a poor answer to a principle brought into activity by the demands of advancing Civilization, and which, once recognized, can never be denied. Pardon me, if I remind him that Jurisprudence is not a dark-lantern, shining in a narrow circle, and never changing, but a gladsome light, which, slowly emerging from original darkness, grows and spreads with human improvement, until at last it becomes as broad and general as the Light of Day. When the Senator, in this age, leaguing all his forces, undertakes to drag down that immortal principle which made Slavery impossible in England, as, thank God! it makes Slavery impossible under the Constitution, he vainly tugs to drag down a luminary from the sky.
The enormity of the pretension that Slavery is sanctioned by the Constitution becomes still more flagrant, when we read the Constitution in the light of great national acts and of contemporaneous authorities. First comes the Declaration of Independence, the illuminated initial letter of our history, which in familiar words announces “that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are Life, Liberty, and the Pursuit of Happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.” Nor does this Declaration, binding the consciences of all who enjoy the privileges it secured, stand alone. There is another national act, less known, but in itself a key to the first, when, at the successful close of the Revolution, the Continental Congress, in a solemn Address to the States, grandly announced: “Let it be remembered that it has ever been the pride and boast of America, that the rights for which she contended were the Rights of Human Nature. By the blessing of the Author of these rights on the means exerted for their defence, they have prevailed against all opposition, and form the Basis of thirteen independent States.”[130] Now, whatever may be the privileges of States in their individual capacities, within their several local jurisdictions, no power can be attributed to the nation, in the absence of positive, unequivocal grant, inconsistent with these two national declarations. Here is the national heart, the national soul, the national will, the national voice, which must inspire our interpretation of the Constitution, and enter into and diffuse itself through all the national legislation. Such are commanding authorities which make “Life, Liberty, and the Pursuit of Happiness,” and, in more general words, “the Rights of Human Nature,” as the basis of our national institutions, without distinction of race, or absurd recognition of the curse of Ham.
In strict harmony with these are the many utterances in the Convention which framed the Constitution: of Gouverneur Morris, of Pennsylvania, who announced that “he never would concur in upholding Domestic Slavery; it was a nefarious institution”;[131] of Elbridge Gerry, of Massachusetts, who said that “we had nothing to do with the conduct of the States as to slaves, but ought to be careful not to give any sanction to it”;[132] of Roger Sherman and Oliver Ellsworth, of Connecticut, and Mr. Gorham, of Massachusetts, who all concurred with Mr. Gerry;[133] and especially of Mr. Madison, of Virginia, who, in a phrase which cannot be quoted too often, “thought it wrong to admit in the Constitution the idea that there could be property in men.”[134] And, lastly, as if to complete the elaborate work of Freedom, and to embody all these utterances, the word “servitude,” which had been allowed in the clause on the apportionment of Representatives, was struck out, and the word “service” substituted. This final and total exclusion from the Constitution of the idea of property in man was on the motion of Mr. Randolph, of Virginia; and the reason assigned for the substitution, according to Mr. Madison, in his authentic report of the debate, was, that “the former was thought to express the condition of slaves, and the latter the obligations of free persons.”[135] Thus, at every point, by great national declarations, by frank utterances in the Convention, and by positive act in adjusting the text of the Constitution, was the idea of property in man unequivocally rejected.
This pretension, which may be dismissed as utterly baseless, becomes absurd, when it is considered to what result it necessarily conducts. If the Barbarism of Slavery, in all its fivefold wrong, is really embodied in the Constitution, so as to be beyond reach of prohibition, either Congressional or local, in the Territories, then, for the same reason, it must be beyond reach of prohibition, even by local authority, in the States themselves, and, just so long as the Constitution continues unchanged, Territories and States alike must be exposed to all its blasting influences. Do we not witness this result in open attempts now made by Slave-Masters to travel with their slaves in the Free States? Calling the slave-roll in the shadow of Bunker Hill, according to well-known menace, will be the triumph of this consummation. And yet this pretension, which in natural consequences overturns State Rights, is announced by Senators who profess to be special guardians of State Rights.
Nor does this pretension derive any support from the much debated clause in the Constitution for the rendition of fugitives from “service or labor,” on which so much stress is constantly put. I do not occupy your time now on this head for two reasons: first, because, having on a former occasion exhibited with great fulness the character of that clause, I am unwilling now thus incidentally to open the question upon it; and, secondly, because, whatever may be its character,—admitting that it confers power upon Congress,—and admitting, also, what is often denied, that, in defiance of commanding rules of interpretation, the equivocal words there employed have that “irresistible clearness” which is necessary in taking away Human Rights,—yet nothing can be clearer than that the fugitives, whosoever they be, are regarded under the Constitution as persons, and not as property.
I disdain to dwell on that other argument, brought forward by Senators, who, denying the Equality of Men, speciously assert the Equality of the States, and from this principle, true in many respects, jump to the conclusion, that Slave-Masters are entitled, in the name of Equality, to take slaves into the National Territories, under solemn safeguard of the Constitution. This argument comes back to the first pretension, that slaves are recognized as “property” in the Constitution. To that pretension, already amply exposed, we are always brought, nor can any sounding allegation of State Equality avoid it. And yet this very argument betrays the inconsistency of its authors. If persons held to service in the Slave States are “property” under the Constitution, then under the provision known as “the three-fifths rule,” which founds representation in the other House on such persons, there is a property representation from the Slave States, with voice and vote, while there is no such property representation from the Free States. With glaring inequality, the representation of Slave States is founded, first, on “persons,” and, secondly, on a large part of their pretended property, while the representation of the Free States is founded simply on “persons,” leaving all their boundless millions of property unrepresented. Thus, whichever way we approach it, the absurdity of this pretension becomes manifest. Assuming the pretension of property in man under the Constitution, you upset the whole theory of State Equality, for you disclose a gigantic inequality between the Slave States and the Free States; and assuming the Equality of States, in the House of Representatives as elsewhere, you upset the whole pretension of property in man under the Constitution.
Nor will I deign to dwell on one other argument, which, in the name of Popular Sovereignty, undertakes to secure for the people in the Territories the wicked power—sometimes, by confusion of terms, called “right”—to enslave their fellow-men: as if this pretension was not crushed at once by the Declaration of Independence, when it announced that all governments “derive their just powers from the consent of the governed”; and as if anywhere within the jurisdiction of the Constitution, which contains no sentence, phrase, or word sanctioning this outrage, and which carefully excludes the idea of property in man, while it surrounds all persons with the highest safeguards of a citizen, such pretension could exist. Whatever it may be elsewhere, Popular Sovereignty within the sphere of the Constitution has its limitations. Claiming for all the largest liberty of a true Civilization, it compresses all within the constraints of Justice; nor does it allow any man to assert a right to do what he pleases, except when he pleases to do right. As well within the Territories attempt to make a king as attempt to make a slave. Beyond all doubt, no majority can be permitted to pass on the question, whether fellow-men shall be bought and sold like cattle. There are rights which cannot be “voted up” or “voted down,” according to phrases of the Senator from Illinois [Mr. Douglas], for they are above all votes. The very act of voting upon the question of reducing men to bondage is a heinous wrong, for it assumes that we may do unto others what we would not have them do unto us. But this pretension,—rejected alike by every Slave-Master and by every lover of Freedom,—
“Where I behold a factious band agree
To call it Freedom, when themselves are free,”[136]—