“The customary meanings of the words republic and commonwealth have been infinite. They have been applied to every government under heaven,—that of Turkey and that of Spain, as well as that of Athens and of Rome, of Geneva and San Marino.”[277]
But the guaranty of a republican form of government must have a meaning congenial with the purposes of the Constitution. If a government like that of Turkey, or even that of Venice, could come within the scope of this guaranty, it would be of little value; it would be words, and nothing more. Evidently, it must be construed so as to uphold the Constitution, according to all the promises of its Preamble; and Mr. Madison has left a record, first published to the Senate by the distinguished Senator from Vermont [Mr. Collamer], of the Committee on the Library, showing that it was originally suggested in part by the fear of Slavery,[278] so that in construing it we must not forget the disturbing influence. The Preamble and the record are important, disclosing the real intention. But no American need be at loss to designate some of the distinctive elements of a republic, according to the idea of American institutions. These are found, first, in the Declaration of Independence, by which it is solemnly announced “that all men are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.” And they are found, secondly, in that other guaranty and prohibition of the Constitution, in harmony with the Declaration: “No person shall be deprived of life, liberty, or property, without due process of law.” Such are essential elements of “a republican form of government,” which cannot be disowned without disowning the very muniments of our liberties; and these the United States are bound to guaranty. But all these, when set in motion, make Slavery impossible. It is idle to say that this result was not anticipated. It would be, then, only another illustration that our fathers “builded better than they knew.”
4. Independent of the guaranty, there is the other clause just quoted, in itself a source of power: “No person shall be deprived of life, liberty, or property, without due process of law.” This was part of the Constitutional Amendments proposed by the First Congress, under the popular demand for a Bill of Rights. Though brief, it is a whole Bill of Rights. Liberty can be lost only by “due process of law,”—words borrowed from the ancient liberty-loving Common Law, illustrated by our master in law, Lord Coke, but best explained by the late Mr. Justice Bronson, of New York, in a judicial opinion:—
“The meaning of the section, then, seems to be, that no member of the State shall be disfranchised, or deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of the Common Law.… The words ‘due process of law,’ in this place, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining the title to property.”[279]
Such is the protection thrown by the Constitution over every “person,” without distinction of race or color, class or condition. There can be no doubt about the universality of the protection. All, without exception, come within its scope. The natural meaning is plain; but there is an incident of history which makes it plainer still, excluding all possibility of misconception. A clause of this character was originally recommended as an Amendment by two Slave States, Virginia and North Carolina, and by a slave-trading State, Rhode Island; but it was restricted by them to freemen, thus: “No freeman ought to be deprived of his life, liberty, or property, but by the law of the land.”[280] When the recommendation came before Congress, the word “person” was substituted for “freeman,” and the more searching phrase “due process of law” was substituted for “the law of the land.” In making this change, rejecting the recommendation of slave-owning and slave-trading States, the authors of this Amendment revealed their purpose, that no person wearing the human form should be deprived of liberty without due process of law; and the proposition was adopted by the votes of Congress, and then of the States, as part of the Constitution. Clearly, on its face, it is an express guaranty of personal liberty, and an express prohibition of its invasion anywhere.
In the face of this guaranty and prohibition,—for it is both,—how can any “person” be held as slave? Sometimes it is argued that this provision must be restricted to places within the exclusive jurisdiction of the National Government. Such formerly was my own impression, often avowed in this Chamber; but I never doubted its complete efficacy to render Slavery unconstitutional in all such places, so that “no person” could be held as a slave at the national capital or in any national territory. Constitutionally, Slavery has always been an outlaw, wherever that provision of the Constitution was applicable. Nobody doubted that it was binding on the national courts; and yet it was left unexecuted, a dead letter, killed by the predominant influence of Slavery, until at last Congress was obliged by legislative act to do what the courts failed to do, and to terminate Slavery in the national capital and national territories.
In this transcendent guaranty and prohibition there are no words of exclusive jurisdiction. All is broad and general as the Constitution itself; and since this provision is in support of human rights, it cannot be restricted by any interpretation. There is no limitation in it, and nobody can supply any such limitation, without encountering the venerable maxim of law, Impius et crudelis qui Libertati non favet,—“Impious and cruel is he who does not favor Liberty.” Long enough have courts and Congress merited this condemnation. The time has come when they should merit it no longer. The Constitution should become a living letter under the predominant influence of Freedom. This conviction has brought petitioners to Congress, during the present session, asking that the Constitution shall be simply executed against Slavery, and not altered. Ah, Sir, it would be a glad sight to see that Constitution, which we have all sworn to support, interpreted generously, nobly, gloriously for Freedom, so that everywhere within its influence the chains should drop from the slave! If it be said that this was not anticipated at its adoption, I remind you of Patrick Henry, when, at the time, he said, “The paper speaks to the point.” No doubt, it does speak to the point, especially with the Amendments immediately thereafter adopted. Cicero preferred to err with Plato rather than to think right with other men. And pardon me, if, when my country is in peril from Slavery, and human rights are to be rescued, I prefer to err with Patrick Henry, in assuming power for Freedom, rather than to think right with Senators who hesitate in such a cause.
Mr. President, thus stands the case. There is nothing in the Constitution on which Slavery can rest, or find any the least support. Even on the face of that instrument it is an outlaw; but if we look further into its provisions, we find at least four distinct sources of power, which, if executed, must render Slavery impossible, while the Preamble makes them all vital for Freedom: first, the power to provide for the common defence and general welfare; secondly, the power to raise armies and maintain navies; thirdly, the power to guaranty a republican form of government; and, fourthly, the power to secure Liberty against all restraint without due process of law. But all these provisions are something more than powers; they are duties also. And yet we are constantly and painfully reminded that pending measures against Slavery are unconstitutional. Sir, this is an immense mistake. Nothing against Slavery can be unconstitutional. It is hesitation that is unconstitutional.