But the same clause in the constitution which gives Congress the power of exclusive legislation over this District, also empowers it “to exercise like authority over all places purchased by the consent of the legislature of the state, in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” If, then, Congress has any constitutional power to legalize slavery in this District, it has the same power to legalize it, (that is, to create it,) in all places in the state of Massachusetts, or New York, or any other, where it may have obtained territory from a state for a fort, magazine, arsenal, dock-yard, or other needful building. Where it has obtained land in the middle of a city,—Philadelphia, New York, Boston, or Chicago,—for a custom-house, it may create slavery there. The power to do this is conferred in precisely the same words as the power by which it has been held that slavery can be established in the District of Columbia.
And now I will occupy the few minutes that are left me, in considering what seems to me the only plausible argument that can be urged in favor of the constitutionality of slavery in this District.
It may be said, that when a territory is obtained by one nation from another, whether by conquest or by treaty, the laws which governed the inhabitants at the time of the conquest or cession, remain in force until they are abrogated by the laws of the conquering or purchasing power. For this principle, the authority of Lord Mansfield, in the case of Campbell v. Hall, 1 Cowper, 208, may be cited. The decision of our own courts are to the same effect. (See United States, appellant, vs. Juan Percheman, 2 Gallison’s Reports, 501; Johnson vs. McIntosh, 7 Peters, 51; 8 Wheat. 543.) I do not dispute the authority of this case. But it does not touch the question I am arguing; or, so far as it bears upon it at all, it confirms the views I would enforce. The principle is, that the existing laws remain in force until they are abrogated. I agree to this. But in the case of the District of Columbia, there was a special agreement between Maryland and the United States, that as soon as the United States should legislate for the District, the laws of Maryland, as such, should cease to be operative here. On the 27th day of February, 1801, therefore, all the rights which the citizens of this District possessed, they possessed under the law of Congress, and not under the law of Maryland. On the day preceding, a citizen could have voted for governor or other state officers of Maryland; but on the day following, he could no longer vote for any such officer. On the day preceding, he could have voted for electors of President and Vice President of the United States; but on the day following, he was bereft of all such right of the elective franchise, and must accept such officers and legislators as the rest of the country might choose to elect for him. On the day preceding, he might, in the character of an insolvent debtor, have been discharged under the insolvent laws of Maryland; but on the day following, he could no longer be so discharged. On the day preceding, he might have been required, though a justice of the peace of the State of Maryland, to perform militia duty; but on the day following, if commissioned as a justice of the peace of the District of Columbia, he could not be compelled to perform militia duty, because he would, in such case, be an officer of the United States. On the day preceding, he might have sued in the circuit court of the United States, as being a citizen of Maryland; but, on the day following, he could not so sue, because he had ceased to be a citizen of a state. Thus the change of jurisdiction over him deprived him of some privileges, and relieved him from some burdens. It deprived him of these privileges, and relieved him from these burdens, notwithstanding the act of Congress had said, in unambiguous words, “the laws of the State of Maryland, AS THEY NOW EXIST, shall be and continue in force in that part of the said District which was ceded by that state to the United States.” But the most momentous change which was wrought by the transfer of the citizen from the jurisdiction of Maryland to the jurisdiction of the United States, was that which made it impossible for him any longer to hold a slave. Under the laws of Maryland, he might have held his slave, for her statutes had legalized slavery; but under the constitution of the United States, he could not hold a slave; for that constitution had given Congress no power to legalize slavery in this District, and had gone so far as to make prohibitions against it. His right to hold slaves then expired, or fell, like his right to vote for United States’ officers, or for state officers, or his right to be discharged under the Maryland insolvent law, or his right to sue in certain courts, &c., &c.
One point more, sir, and I have done. Why, says my opponent, did not the right to hold slaves continue after the change of jurisdiction, as well as the right to hold horses? For the plainest of all reasons, I answer: for the reason that a horse is property by the universal consent of mankind, by the recognition of every civilized court in Christendom, without any positive law declaring it to be the subject of ownership. But a man is not property, without positive law; without a law declaring him to be the subject of ownership. There was such a positive law in Maryland; but Congress, for want of constitutional authority, could not enact, revive, or continue it. And such I verily believe would have been the decision of the Supreme Court of the United States, had the question been carried before them immediately subsequent to the act of 1801. But now, as slavery has existed practically in this District for half a century, it is proper to pass a law abolishing it. It is better, under the present circumstances, that slavery should be abolished here by a law of Congress, than by the decision of a court; because Congress can provide an indemnity for the owners, and let the slaves go free. But should it be abolished by a legal adjudication, every slave would be hurried away to the south, and sold, he and his descendants, into perpetual bondage.
In justice, then, to the north, which ought not to bear the opprobrium of slavery in this capital of the nation; in justice to the slaves who are here held in bondage against legal, as well as natural right; and, in more than justice to the masters, whose alleged claims I am willing, under all the circumstances, to satisfy, let a law be forthwith passed for ascertaining and paying the market value of the slaves, and for repealing all laws which uphold slavery in this District.
FOOTNOTES:
[5] Lecture on the North and South. Delivered in College Hall, January 16, 1849, before the Young Men’s Mercantile Library Association of Cincinnati. By Ellwood Fisher.
[6] An anecdote, which I have on the best authority, is not inappropriate. A few years ago, a citizen of the State of Connecticut absconded, leaving a wife behind him. He went to the State of Mississippi, where he took a colored woman as his concubine, had children by her, acquired property, and died. The wife and heirs in Connecticut claimed the property acquired in Mississippi. The claim was contested. The honorable Henry S. Foote, now a senator from that state, conducted the defence. He denied the title of the wife in Connecticut, affirmed that of the concubine and her children in Mississippi, and cited the case of Abraham and Sarah and Hagar, to prove the legality and the propriety of the concubinage, and the divine authority for it. And surely, if the Bible argument in favor of slavery is sound, Mr. Foote’s argument in favor of concubinage is equally so.
[7] This clause in the constitution is annulled; but for all purposes of determining the true interpretation of words, it is as good as ever.