The Continental Monthly, Vol. 1, No. 6, June, 1862

THE CONSTITUTION AND SLAVERY

There are two sections of the United States, the Free States and the Slave States, who hold views widely different upon the subject of Slavery and the true interpretation of the Constitution in relation to it. The Southern view, for the most part, is:

1. The Constitution recognizes slaves as strictly property, to her bought and sold as merchandise.

2. The Constitution recognizes all the territories as open to slavery as much as to freedom, except in those cases where it has been expressly interdicted by the Federal Government; and it secures the legal right to carry slaves into the territories, and any act of Congress, restricting this right to hold slaves in the territories, is unconstitutional and void.

3. Slavery is a natural institution, and not to be considered as local and municipal.

4. The Constitution is simply a compact or league between sovereign States, and when either party breaks, in the estimation of the other, this contract, it is no longer binding upon the whole, and the party that thinks itself wronged has a right, acting according to its own judgment, to leave the Union.

5. This contract between sovereign States has been broken to such an extent, by long and repeated aggressions upon the South by the North, that the slave States who have seceded from the Union, or who may secede, are not only right in thus doing, but are justified in taking up arms, to prevent the collection of revenue by the Federal Government.

These ideas are universally repudiated in the free States. It is not my purpose to discuss the social or moral relations of slavery, but simply to consider under what circumstances the Constitution originated, and what was the clear intent of those who adopted it as the organic or fundamental law of the country. The last assumption taken by the seceding States grows out of the first four, and therefore it becomes a question of vital interest, what did the framers of the Constitution mean? We must remember that while names remain the same, the things which they represent in time go through a radical change. Slavery is not the same that it was when the Constitution was formed, nor are the original slave States the same. If freedom at the North has made great strides, so also has slavery South. Our country now witnesses a mighty difference in free and slave institutions from what originally was seen. The stand-point of slavery and freedom has altogether changed, not from local legislation, but from natural causes, inherent in these two diverse states of society. New interests, new relations, new views of commerce, agriculture, and manufactures now characterize our country. It will not do then to infer, from the existing state of things, as originally the respective condition of the slaveholding and the free States, or what was in fact the import of that agreement, called the Constitution, which brought about the Federal Union. The framers of the Constitution did not reason so much as to what they should do for posterity as for the generation then living. As fallible men, much as they would wish to legislate wisely for the future, yet their very imperfection of knowledge precluded them from knowing fully what fifty or a hundred years hence would be the development of slavery or freedom. Their actions must have reference to present wants, and consult especially existing conditions of society. While they intended that the Constitution should be the supreme law of the land, yet they wisely put into the hands of the people the power of amending it at any such time as circumstances might make it necessary. The question then at issue between the North and the South is not what the Constitution should read, not what it ought to be, to come up to the supposed interests of the country; but what it does read. How is the Constitution truly to be interpreted? All parties should acquiesce in seeking only to find out the literal import of the Constitution as originally framed, or subsequently amended, and abide by it, irrespective altogether of present interests or relations. The reason is, in no other way can the common welfare of the country be promoted. If the necessities of the people demand a change in the Constitution, they can, in a legal way, exercise the right, always remembering that no republic, no free institutions, no democratic state of society can exist that denies the great principle of the rule of the majority. It becomes us, then, in order that we may come to a right decision respecting the duties that grow out of our Federal Union, to consider what language the Constitution makes use of, in relation to slavery, and how was this instrument interpreted by the framers. The great question is, was slavery regarded as a political and moral evil, to be restricted and circumscribed within the States existing under the Constitution, or was it looked upon as a blessing, a social relation of society, proper to be diffused over the territories? It can be clearly shown that there was no such state of feeling, respecting slavery, as to lead the originators of Constitution to look upon it as a thing in itself of natural right, useful in its operation, and worthy of enlargement and perpetuation. Rather, the universal sentiment respecting slavery, North and South, was, that as a great moral, social, and political evil, it should be condemned, and the widely prevalent impression was, that through the peaceful operation of causes that evinced the immeasurable superiority of free institutions, slavery would itself die out, and the whole country be consecrated to free labor. Never did it enter the minds of the framers of the Constitution, that slavery was a thing in itself right and desirable, or that it should be encouraged in the territories. It was looked upon as exclusively local in its character, the creature of State law, a relation of society that was to be regulated like any other municipal institution. It is not to be presumed that the authors of our government would, in the Declaration of Independence, assert the natural rights of all men to life, liberty, and the pursuit of happiness, and then contradict this cardinal principle of the revolution in the Constitution. They found slavery existing in the Southern States; they simply left it as it was before the Revolution, with the idea that in time the local action of the State legislature would do away with the system. But so far as the extension of slavery was concerned, the predominant feeling, North and South, was hostile to it. The security of the country demanded the union of the States under one common Constitution. The dangers of foreign war, the exhausted finances of the different States, the evils of a great public debt, contracted during the Revolution, made it advisable, as soon as the consent of the States could be got, to have a Constitution that should command security at home and credit and respect abroad. It was regarded as indispensable for union, that slavery should be left as it was found in the States. The thirteen States that first formed our Union under the Constitution, with the great evils that grew out of war and debt, agreed, for their own mutual protection, that slavery should be permitted to exist in those States where it was sanctioned by the local government, as an evil to be tolerated, not as a thing good in itself, to be fostered, perpetuated, and enlarged. Seeing that union could not be had without slavery, it was recognized as an institution not to be interfered with by the free States; but not acknowledged, in the sense that it was right, a blessing that, like free labor, should be the normal condition of the whole people. There was no such indifference to slavery as a civil institution, as has been asserted. The reason is two-fold: first, the States could not be indifferent to slavery, if they wished; and secondly, they could not repudiate, in the Constitution, the Declaration of Independence. Thus the word 'slave' is not found in the Constitution. In the rendition of slaves, they simply spoke of persons held to service, and as union was impossible, if the free States were open to their escape, without the right being recognized of being returned, this provision was accordingly made; and yet by the provision that no person should be deprived of liberty or life, without due process of law, and that the free citizens of one State, irrespective of color, should have the same rights, while resident in any other State, as the citizens of that State, the framers of our Constitution declared, in language most explicit, the natural rights of all men. The question is not as to the consistency of their profession and practice, or how they could fight for their own independence, and yet deny freedom, for the sake of the Union, to the slaves; but the question is simply whether, in preparing the Constitution, they intended to engraft upon it the idea of the natural right of slavery, and recognize it as a blessing, to be perpetuated and enlarged. The question is simply, whether the Constitution was designed to be pro-slavery, or whether, like the instrument of the Declaration of Independence, it was intended to be the great charter of civil and religious freedom, although compelled, for the sake of union, not to interfere with slavery where it already existed? Great stress is put upon that clause enjoining the rendition of slaves escaping from their masters; but union was impossible without this provision. The necessity of union was thought indispensable for protection, revenue, and securing the dearly-bought blessings of independence. The question with them was not, ought slavery to be recognized as a natural right, and slaves a species of property like other merchandise? but simply, shall we tolerate this evil, for the sake of Union? Thus, as the indispensable condition of union, the provision was made for the rendition of persons held to labor in the slave States. Why is the language of the Constitution so guarded as not to have even the word 'slave' in it, and yet of such a character as not to interfere with local State legislation upon slavery? Simply to steer between the Charybdis of no union and the Scylla of the repudiation of the Declaration of Independence, teaching that all men are born free and equal, and that all have natural rights, such as life, liberty, and the pursuit of happiness. And yet, in the slave States, the interpretation of the Constitution is such, that the free States are accused of violating it, unless they acknowledge that it recognizes slavery as a natural right, and an institution to be perpetuated and enlarged, and put upon the same level with the blessing of freedom, in the territories. Slavery virtually must be nationalized, and the Constitution be interpreted so as to carry it all over the territories now existing, or to be acquired, or the free States have broken the Constitution, and the slave States may leave the Union whenever it suits their pleasure. It is easy to see how time has brought about such a revolution of feeling and idea respecting slavery. It can be shown that circumstances have changed altogether the relations of slavery, and while names have remained the same, the things which they represent have assumed a radical difference. It can be shown that the introduction of the cotton-gin, and the increased profits of slave labor, have given an impetus to the domestic institution that brings with it an entire revolution of opinion. When slavery was unprofitable to the slaveholders; when, in the early days of the republic, the number of slaves was comparatively small; when, all over the country, the veterans of the Revolution existed to testify to the hardships they endured for national independence, and eulogize even the help of the negro in securing it, then slavery was regarded a curse, an evil to be curtailed and in time obliterated; then the local character of slavery, as the creature of municipal law, not to be recognized where such law does not exist, was the opinion universally of the people. But now, with the growing profits of slavery, with the increase of the power of this institution, other and far different language is held. Disguise it as we may, there do exist great motives that have silently yet powerfully operated within the last thirty or forty years, to change the popular current of feeling and opinion. Not only have the slave States held the balance of political power, but the spread of slavery has been gigantic. The fairest regions of the South have been opened up to the domestic institution, and Texas annexed, with Louisiana, Arkansas and Florida, making an immense area of country, to be the nursery of slavery. The political ascendency of the slave States has ever given to the South a great advantage, in the extension of their favored institution, and the result has proved that what our ancestors looked upon as an evil that time would soon do away with, has grown into a monster system that threatens to make subservient to it the free institutions of the North.

Slavery has now come to be a mighty energy of disquietude all over the country, assuming colossal proportions of mischief, and mocking all the ordinary restraints of law. The question of the present day to be decided is not whether freedom and slavery shall exist side by side, nor whether slavery shall be tolerated as a necessary evil; but in reality, whether freedom shall be crushed under the iron hoof of slavery, and this institution shall obtain the complete control of the country. It has been said that the Constitution takes the position of complete indifference to slavery; but the history of the slave States does not lead us to infer that they were ever willing that slavery should be tested by its own merits, or stand without the most persistent efforts to secure for it the patronage of the Federal Government. Study the progress of slavery, the last forty years, and none can fail to see that it has ever aimed to secure first the supreme political control, and then to advance its own selfish interests, at the expense of free institutions. The great danger has always been, that while numerically vastly inferior to the North, slavery has always been an unit, with a single eye to its own aggrandizement; consequently, the history of the country will show that so far from the general policy of the government being adverse to slavery, that policy has been almost exclusively upon the side of slaveholders. The domestic institution has been ever the pet interest of the land.

In all that pertains to political power, the slaveholding interests have been in the ascendant. Even when Lincoln was elected, it was found that the Senate and House of Representatives, as well as the Judiciary, were numerically upon the side of slavery, so that he could not, even had it been his wish, carry out any measure inimical to the South. True, the South had not the same power as under Buchanan; they could not hope ever again to wield the resources of government to secure the ascendency of slavery in Kansas; but for all that, Lincoln was powerless to encroach upon their supposed rights, even if thus disposed. Is it not, then, evident, that so far from the slaveholding States holding to the opinions of the framers of the Constitution, there has been within the last forty years a mighty change going on in the South, giving to slavery an essentially aggressive policy, and an extension never dreamed of by the authors of the Constitution? The ground of the Constitution respecting slavery, was simply non-interference in the States where it already existed. It left slavery to be curtailed, or done away with by the local legislature, but it used language the most guarded, to preclude the idea that slavery rested upon natural right, and that slaves, like other property, could be carried into the territories. It has been said, that the position of the Constitution is that of absolute indifference, both to freedom and slavery; that it advocated neither, but was bound to protect both. But how could the Constitution be indifferent to the very end for which it was made? Was not its great design to secure the liberty of the country, and promote its highest welfare? The Constitution simply tolerated the existence of slavery, and no more. As union was impossible without the provision for the rendition of persons held to labor, escaping from one state into another, it simply accommodated itself to an evil that was thought would be restricted, and in due process of time done away with in the slave States. To strain this provision to mean that it advocated the natural right of slavery, and recognized the slave as property, to be sold and bought like other merchandise, is simply to say that the framers of the Constitution were the greatest hypocrites in the world, originating the Declaration of Independence upon the basis of the natural right of all men to life, liberty, and the pursuit of happiness, and yet with full knowledge and purpose giving the lie to this instrument in the Constitution. Madison thought it wrong to admit in the Constitution the idea of property in man. The word 'service' was substituted for 'servitude,' simply because this last encouraged the idea of property.

The constitutional provision for the rendition of slaves was simply a compromise between union and slavery. Of the two evils of no union, or no slavery, it was thought the former was the worse, and consequently the free States fell in with the measure. But could the patriots of the Revolution have foreseen the gigantic growth of slavery, and the use that would have been made of the provision recognizing it, no consideration would have induced them to adopt a course that has been prolific of so much misrepresentation and mischief to the country. They left the suppression of slavery to the States where it existed, but there was no intention to ingraft the idea of property in man in the Constitution, or to favor its extension beyond the original slave States in any way. John Jay, the first Chief-Justice, was preëminently qualified to judge respecting this. We have his testimony most explicitly denying the natural right of property in slaves, and declaring that the Constitution did not recognize the equity of its extension in the new States or Territories. Who was there more conversant with the genius of our country than Washington; and yet how full is his testimony to the evil of slavery; its want of natural right to support it, and the necessity of its speedy suppression and abolition? Is it possible that he, himself a slaveholder and an emancipationist, could utter such sentiments and enforce them by his example, if he regarded the Constitution as establishing the light of property in man, and the benefit of the indefinite expansion of slavery over the country? No, indeed! If we may consider the Constitution in relation to slaves an inconsistent instrument, we can not prove it an hypocritical and dishonest one. The hard necessities of the times wrung out of reluctant patriots the admission of the rendition of slaves, but they would not by any reasonable construction of language, assert the natural right of property in slaves, and the propriety or benefit of its toleration in new States and Territories. It was bad enough to tolerate this evil in the old slave States, but it would be infamous to hand down to posterity a Constitution denying the self-evident truths of the Declaration of Independence. Toleration is not synonymous with approval, or existence with right. There is a most subtle error in the assumption of the indifference of the Constitution to freedom and slavery—that it advocated neither, but protected both. Certainly the framers of the Constitution were not automatons, or this instrument the accident of the throw of the dice-box. The great purpose of this instrument was to raise the revenue, and defend the country. Its end was to protect the liberties and command the respect of civilized nations. The old Confederation was to give way to the Federal Constitution. The independence of the United States had been achieved at a heavy cost. To say nothing of frontiers exposed, country ravaged, towns burnt, commerce nearly ruined, the derangement of finances—the pecuniary loss alone amounted to one hundred and seventy million dollars, two thirds of which had been expended by Congress, the balance by individual States. The design of the Constitution was to preserve the fruits of the Revolution, to respect State sovereignty, and yet secure a powerful and efficient Union; to have a central government, and yet not infringe upon the local rights of the States. It will, therefore, be seen that while the subject of slavery was earnestly discussed, and presented at the outset a great obstacle to the union of the States, yet it was thought, upon the whole, best to leave to the slave States the business of doing away with this great evil in such a manner as in their judgment might best conduce to their own security and the preservation of the Union.

But no truth of history is more evident than that the authors of the Constitution regarded slavery as impossible to be sustained upon the ground of the natural rights of mankind, and deserving of no encouragement in the Territories, or States hereafter to come into the Union. It was thought that the best interests of the slave States would lead them to abolish slavery, and that before many years, the Republic would cease to bear the disgrace of chattel bondage. It is certainly proper that the acts and language of the authors of the Constitution, and those who chiefly were instrumental in achieving our independence, should be made to interpret that instrument which was the creation of their own toils and love of country. Because the circumstances of the present day have brought about a mighty change in the feelings and opinions of the slave States, it does not follow that the Constitution in its original intention and spirit should be accommodated to this new aspect of things. It is easy to get up a theory of the natural right of slavery, and then say that the Constitution meant that the slave States should carry slave property just where the free States carry their property; but when this ground is taken, the Constitution is made, to all intents, a pro-slavery instrument. It ceases to be the charter of a nation's freedom, and resolves itself into the most effective agent of the propagandism of slavery. The transition is easy from such a theory to the fulfillment of the boast of Senator Toombs, 'that the roll of slaves might yet be called at the foot of Bunker Hill Monument.' But no straining of the language of the Constitution can make it mean the recognition of the natural right of slavery. The guarded manner in which the provision was made for the rendition of slaves, and all the circumstances connected with the adoption of the Constitution, show conclusively that slavery was considered only a local and municipal institution, a serious evil, to be suppressed and curtailed by the slave States, and never by the General Government a blessing to be fostered and extended where it did not exist at the time the Union of the thirteen States was perfected.

Alexander H. Stephens, Vice-President of the Confederate States, in a speech at Atlanta, Georgia, said:'Jefferson, Madison, Washington, and many others, were tender of

the word slave, in the organic law, and all looked forward to the time when the institution of slavery should be removed from our midst as a trouble and a stumbling-block. The delusion could not be traced in any of the component parts of the Southern Constitution. In that instrument we solemnly discarded the pestilent heresy of fancy politicians, that all men of all races were equal, and we have made African inequality, and subordination, the chief corner-stone of the Southern Republic.'

Here we have the great idea of an essential difference in relation to the Constitution and slavery existing at the present day South, from that which did exist at the time of its ratification universally by the people of the thirteen States. The Vice-President of the Southern Confederacy frankly admits that slavery is its chief corner-stone; that our ancestors were deluded upon the subject of slavery; that the ideas contained in the Declaration of Independence respecting the equality of all men, and their natural right to life, liberty, and the pursuit of happiness, are only the pestilent heresy of fancy politicians; consequently that in the Southern Constitution all such trash was solemnly discarded. Can clearer proof be wanted to show that the stand-point of slavery and freedom has altogether changed since the days of Washington? Is it not true that our country at the present day presents the singular spectacle of two great divisions, one holding to the Constitution as interpreted by our ancestors North and South, the other openly repudiating such interpretation? Is it strange, with such a radical difference existing as to the import of the Constitution upon the subject of slavery, that we should have such frequent and ever persistent charges of Northern aggression? If the history of slavery be kept in mind, it will be seen that it has steadily had its eye upon one end, and that is national aggrandizement. Thus about two hundred thousand slaveholders wield all the political power of the South, and compel all non-slaveholders to acquiesce in their supremacy. But whatever the South may choose to do, the North is under obligation to give to slavery nothing more than what is guaranteed in the Constitution. If more than this is asked for, the North is bound by a just regard for its own interests and the prosperity of the country to refuse compliance. It has been seen that even admitting that a State has a just cause of complaint, or supposing as a matter of fact that the Constitution is violated, she can not set herself up to be exclusively the judge in this matter, and leave the Union at her convenience.