Of course, a barbarism like Slavery, having its origin in force and nothing else, can have no legal or constitutional support except from positive sanction. It can spring from no doubtful phrase. It must be declared by unambiguous words, incapable of a double sense. Here I repeat an argument which I have presented before, when on other occasions arraigning the pretensions of Slavery under the Constitution, but which, so long as Slavery claims immunity, cannot be allowed to drop out of sight. It begins with the great words of Lord Mansfield, who, in the memorable case of Somerset, said: “The state of Slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law.… It is so odious that nothing can be suffered to support it but positive law.”[234] This principle has been adopted by tribunals even in slaveholding States.[235] But I do not stop to dwell on these authorities. Even the language, “exclusive legislation in all cases whatsoever,” cannot be made to sanction Slavery. It wants those positive words, leaving nothing to implication, which are obviously required, especially when we consider the professed object of the Constitution, as declared in its Preamble, to “establish justice and secure the blessings of liberty.” There is no power in the Constitution to make a king, or, thank God, to make a slave; and the absence of all such power is hardly more clear in one case than in the other. The word king nowhere occurs in the Constitution, nor does the word slave. But if there be no such power, then all Acts of Congress sustaining Slavery at the national capital must be unconstitutional and void. The stream cannot rise higher than the fountain head; nay, more, nothing can come out of nothing; and if there be nothing in the Constitution authorizing Congress to make a slave, there can be nothing valid in any subordinate legislation. It is a pretension which has thus far prevailed simply because Slavery predominated over Congress and courts.
To all who insist that Congress may sustain Slavery in the national capital I put the question, Where in the Constitution is the power found? If you cannot show where, do not assert the power. So hideous an effrontery must be authorized in unmistakable words. But where are the words? In what article, clause, or line? They cannot be found. I challenge their production. Insult not human nature by pretending that its most cherished rights can be sacrificed without solemn authority. Remember that every presumption and every leaning must be in favor of Freedom and against Slavery. Remember, too, that no nice interpretation, no strained construction, no fancied deduction, can suffice to sanction the enslavement of our fellow-men. And do not degrade the Constitution by foisting upon its blameless text the idea of property in man. It is not there; and if you think you see it there, it is simply because you make the Constitution a reflection of yourself.
A single illustration will show the absurdity of this pretension. If, under the clause giving to Congress “exclusive legislation” at the national capital, Slavery may be established, and under these words Congress is empowered to create slaves instead of citizens, then, under the same words, it may do the same thing in the “forts, magazines, arsenals, dock-yards, and other needful buildings” belonging to the United States, wherever situated, for these are all placed within the same “exclusive legislation.” The extensive navy-yard at Charlestown, in the very shadow of Bunker Hill, may be filled with slaves, with enforced toil to take the place of that cheerful, well-paid labor whose busy hum is the best music of the place. Such an act, however consistent with slaveholding tyranny, would not be regarded as constitutional at Bunker Hill.
If there were any doubt on this point, and the absence of all authority were not perfectly clear, the prohibitions of the Constitution would settle the question. It is true that Congress has “exclusive legislation” within the District; but the prohibitions to grant titles of nobility, to pass ex post facto laws, to pass bills of attainder, and to establish religion, are unquestionable limitations of this power. There is also another limitation, equally unquestionable. It is found in an Amendment proposed by the First Congress, on the recommendation of several States, as follows:—
“No person shall be deprived of life, liberty, or property, without due process of law.”
This prohibition, according to the Supreme Court, is obligatory on Congress.[236] It is also applicable to all claimed as slaves; for, in the eye of the Constitution, every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave, is a person. Of this there is no question. But a remarkable incident of history confirms the conclusion. As originally recommended by Virginia, North Carolina, and Rhode Island, this proposition was restricted to the freeman. Its language was,—
“No freeman ought to be deprived of his life, liberty, or property, but by the law of the land.”[237]
Of course, if the word freeman had been adopted, this clause would be restricted in its effective power. Deliberately rejecting this limitation, the authors of the Amendment recorded their purpose that no person, within the national jurisdiction, of whatever character, shall be deprived of liberty without due process of law. The latter words are borrowed from Magna Charta, and they mean without due presentment, indictment, or other judicial proceedings. But Congress, undertaking to support Slavery at the national capital, enacts that persons may be deprived of liberty there without any presentment, indictment, or other judicial proceedings. Therefore every person now detained as a slave in the national capital is detained in violation of the Constitution. Not only is his liberty taken without due process of law, but, since he is tyrannically despoiled of all the fruits of his industry, his property also is taken without due process of law. You talk sometimes of guaranties of the Constitution. Here is an unmistakable guaranty, and I hold you to it.
Bringing the argument together, the conclusion may be briefly stated. The five-headed barbarism of Slavery, beginning in violence, can have no legal or constitutional existence, unless through positive words expressly authorizing it. As no such positive words are found in the Constitution, all legislation by Congress supporting Slavery must be unconstitutional and void, while it is made still further impossible by positive words of prohibition guarding the liberty of every person within the exclusive jurisdiction of Congress.
A court properly inspired, and ready to assume that just responsibility which dignifies judicial tribunals, would at once declare Slavery impossible at the national capital, and set every slave free,—as Lord Mansfield declared Slavery impossible in England, and set every slave free. The two cases are parallel; but, alas! the court is wanting here. The legality of Slavery in England was affirmed in professional opinions by the ablest lawyers; it was also affirmed on the bench. England was a Slave State, and even its newspapers were disfigured with advertisements for the sale of human beings, while the merchants of London, backed by great names in the law, sustained the outrage. Then appeared Granville Sharp, the philanthropist, who, pained by the sight of Slavery, and especially shocked by the brutality of a slave-hunt in the streets of London, was aroused to question its constitutionality in England. For two years he devoted himself to anxious study of the British Constitution in all its multifarious records. His conclusion is expressed in these precise words: “The word slaves, or anything that can justify the enslaving of others, is not to be found there, God be thanked!”[238] Thus encouraged, he persevered. By his generous exertions the negro Somerset, claimed as a slave by a Virginia gentleman then in London, was defended, and the Court of King’s Bench compelled to that immortal judgment by which Slavery was forever expelled from England, and the early boast of the British Constitution became a practical verity. More than fourteen thousand persons, held as slaves on British soil—four times as many as are now found in the national capital—became instantly free, without price or ransom.