Congress, then, does not and cannot legalize slavery in this District. It found slavery in existence in the states; and it does not abolish it, or interfere with it, because it has no power of “exclusive legislation” in them. But Congress has as much right to go into any state and abolish slavery there, as any state, even Virginia or Maryland, has to come into this District with its laws and establish slavery here. I suppose that no jurist will contend that Congress could have passed the act of 1793, for the recapture of fugitive slaves, had it not been for the third clause in the second section of the fourth article of the constitution, which provides for the redelivery of a fugitive slave, on the claim of his master. By this article in the constitution, the case of fugitive slaves only is provided for. If a master voluntarily carries his slave into a free state, and the slave departs from his possession, he cannot reclaim him. Why not? Why cannot Congress pass a law, that if a man takes a dozen slaves to Boston, and they there see fit to strike for wages, and to leave his possession because their terms are not complied with,—why is it, I ask, that Congress cannot pass a law authorizing their seizure and delivery into the master’s hands? The reason is, that the constitution has conferred upon Congress no such express power, nor is any such power implied as being necessary to the exercise of any power that is expressed. And if Congress cannot so much as restore a slave to a master, who has voluntarily carried him into a free state, how can it continue slavery in this District, after Maryland has ceded it to this government, whose fundamental, organic law gives it no power to create or continue slavery here?
Suppose Maryland had ceded her share of the District to Massachusetts, would not every slave in it have been instantaneously free by the constitution of Massachusetts? They would have been transferred to a free jurisdiction,—just as much as an individual owner of a slave transfers him to a free jurisdiction, when he voluntarily takes him to the north. The legal existence of slavery was annulled in this District when Congress exercised its “exclusive” power over it, just as much as the debtor’s right to be discharged under the Maryland bankrupt law was annulled.
But I go further than this; and I say that the constitution not only does not empower Congress to establish or continue slavery in this District, but again and again, by the strongest implications possible, it prohibits the exercise of such a power.
In regard to this whole matter of slavery, the constitution touches the subject with an averted face. The abhorred word “slave” is nowhere mentioned in it. The constitution is ashamed to utter such a name. The country, coming fresh from that baptism of fire,—the American Revolution,—would not profane its lips with this unhallowed word. Hence, circumlocution is resorted to. It seeks to escape a guilty confession. Like a culprit, in whom some love of character still survives, it speaks of its offence without calling it by name. It uses the reputable and honorable word “persons,” instead of the accursed word “slaves.” As the Tyrian queen, about to perpetrate a deed which would consign her character to infamy, called it by the sacred name of “marriage,” and committed it,—
“Hoc prætexit nomine culpam;”
so the constitution, about to recognize the most guilty and cruel of all relations between man and man, sought to avert its eyes from the act, and to pacify the remonstrances of conscience against every participation in the crime, by hiding the deed under a reputable word.
But let us look to the prohibitions of the constitution; for I maintain that there is not only no power, express or implied, in the constitution authorizing Congress to create or continue slavery in this District, but that it is debarred and prohibited from doing so, again and again.
I suppose no one will deny that the positive prohibitions, against the exercise of certain enumerated powers, apply to Congress, when legislating for this District, just as much as when legislating for the union at large. This doctrine has recently been strongly asserted by Mr. Calhoun in the Senate of the United States; and, as I would gladly produce conviction in southern minds, I make use of this southern authority. He affirms that Congress, in legislating for the territories, “is subject to many and important restrictions and conditions, of which some are expressed and others implied. Among the former may be classed all the general and absolute prohibitions of the constitution; that is, all those which prohibit the exercise of certain powers under any circumstances. In this class is included the prohibition of granting titles of nobility; passing ex post facto laws and bills of attainder; the suspension of the writ of habeas corpus, except in certain cases; making laws respecting the establishment of religion, or its free exercise, and every other of like description.”
Will any man say that Congress can pass an ex post facto law for this District, and defend itself by referring to its power of “exclusive legislation” over it? Can Congress pass a bill of attainder corrupting the blood of an inhabitant of this District, or repeal or suspend at any time his right to a writ of habeas corpus, or establish a religion here, or interdict the free exercise thereof? No jurist, no statesman, will pretend it.
But there is another prohibition in the constitution every whit as full and explicit as any of these. The fifth article of amendment declares that “no person shall be deprived of life, liberty, or property, without due process of law.”