Slavery: letters and speeches

by Horace Mann

4. The next point of inquiry is, What is the legal force and effect, upon the subject of slavery, of the act of Congress of 1801, before cited? Its words are, “That the laws of the state of Maryland, as they now exist, shall be continued in force in that part of said District which was ceded by that state to the United States,” &c. And here, I acknowledge that the operation of this clause is precisely the same as though Congress had transcribed all the Maryland laws, word for word, and letter for letter, into its own statute book, with the clause prefixed, “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,” and the President of the United States had affixed his signature thereto. I acknowledge further, that the laws of Maryland had legalized slavery within the state of Maryland, and had defined what classes of persons might be held as slaves therein.

But it by no means follows, because Congress proposed to reënact, in terms, for this District, all the laws of Maryland, that, therefore, it did reënact them. It does not follow, that because two legislatures use the same words, that the words must necessarily have the same effect. It makes all the difference in the world, whether words are used by one possessed of power, or by one devoid of power. Congress might pass a law in precisely the same words as those used by the Parliament of Great Britain, and yet the law of Congress be invalid and inoperative, while the act of Parliament would be valid and binding. We have a written constitution; Great Britain has no written constitution. The British Parliament, on many subjects, has an ampler jurisdiction than the American Congress. The law of Congress might be unconstitutional and void, while that of the British Parliament, framed in precisely the same language, might be constitutional and binding.

So the law of Maryland might be valid under the constitution of Maryland, and, therefore, binding upon the citizens of Maryland; while the law of Congress, though framed in precisely the same words, would be repugnant to the constitution of the United States, and therefore have no validity.

Now this is precisely the case before us. Congress, in attempting to reënact the Maryland laws, to uphold slavery in this District, transcended the limits of its constitutional power. It acted unconstitutionally. It acted in plain contravention of some of the plainest and most obvious principles consecrated by the constitution. If so, no one will dispute that its act is void. I do not deny, then, that Congress used words of sufficient amplitude to cover slavery; but what I deny is, that it had any power to give legal force to those words.

5. My next proposition, therefore, is this: That as Congress can do nothing excepting what it is empowered to do by the constitution, and as the constitution does not empower it to establish slavery here, it cannot establish slavery here, nor continue it.

Where is there any express power given to Congress by the constitution to establish slavery? Where is the article, section, or clause? I demand to have the title shown. Thousands of human beings are not to be robbed of all their dearest rights, and they and their children, forever, by strained constitutions, or apocryphal authority, doomed to bondage. Will those who say that Congress cannot establish a banking institution by construction, nor aid internal improvements, nor enact a tariff,—will they say that Congress can make a man a slave, and all his posterity slaves, by construction?

Nor can any power to establish slavery be deduced from the 18th clause of the 8th section of the 1st article of the constitution, which gives Congress power “to make all laws which shall be necessary and proper for carrying into execution” the powers that are granted.

What power is granted to Congress, for the exercise of which the establishment of slavery in this District is a necessary means or a preliminary? Congress has power to lay and collect taxes; to borrow money; to regulate commerce; to establish uniform rules of naturalization; to coin money; to punish counterfeiters; to establish post offices and post roads; to promote the progress of science and the arts; to establish courts; to define and punish piracies on the high seas; to declare war; to raise and support armies; to provide and maintain a navy; to organize and maintain a militia; and so forth, and so forth. But to what one of all these powers is the power to establish slavery in the District of Columbia a necessary incident? If slavery in the District of Columbia were to cease to-day, could not the government continue to exercise every function which it has heretofore exercised? If so, then the existence of slavery in this District is not “necessary” to the exercise of any of the expressly granted powers. I call upon any gentleman to name any one power of this government which cannot be exercised, which must necessarily cease, if slavery should cease to be, in this District of Columbia? “I pause for a reply.”

Well, then, if a power to establish slavery in this District is not among the granted powers, and if it is not necessary for the exercise of any one of the granted powers, then it is—no where;—it does not exist at all. No power of Congress, then, exists, either for the creation or for the continuance of slavery in this District; and all the legislation of Congress upon this subject is beyond or against the constitution.

Let me illustrate this in another way. Suppose there had been a religious establishment in Maryland at the time of the cession; suppose, under the auspices of Lord Baltimore, the Catholic religion had been established as the religion of the state; and that, in order to punish heresy and secure conformity to the religion of the state, an inquisition had been founded, and that the seat of that inquisition had been within the limits of the District of Columbia, at the time of the cession; could Congress, in the absence of all express or implied authority on the subject of establishing a state religion, have upheld the Catholic religion here, and appointed the officers of the inquisition to administer it? The idea is abhorrent to the whole spirit of the constitution. But Congress had as much power to establish a national religion here, in the absence of all express or implied authority to do so, as to establish slavery here.