As a mere historical fact, we have seen that African servitude among us-confessedly the mildest and most humane of all inst.i.tutions to which the name "slavery" has ever been applied-existed in all the original States, and that it was recognized and protected in the fourth article of the Const.i.tution. Subsequently, for climatic, industrial, and economical-not moral or sentimental-reasons, it was abolished in the Northern, while it continued to exist in the Southern States. Men differed in their views as to the abstract question of its right or wrong, but for two generations after the Revolution there was no geographical line of demarkation for such differences. The African slave-trade was carried on almost exclusively by New England merchants and Northern ships. Mr. Jefferson-a Southern man, the founder of the Democratic party, and the vindicator of State rights-was in theory a consistent enemy to every form of slavery. The Southern States took the lead in prohibiting the slave-trade, and, as we have seen, one of them (Georgia) was the first State to incorporate such a prohibition in her organic Const.i.tution. Eleven years after the agitation on the Missouri question, when the subject first took a sectional shape, the abolition of slavery was proposed and earnestly debated in the Virginia Legislature, and its advocates were so near the accomplishment [pg 79] of their purpose, that a declaration in its favor was defeated only by a small majority, and that on the ground of expediency. At a still later period, abolitionist lecturers and teachers were mobbed, a.s.saulted, and threatened with tar and feathers in New York, Pennsylvania, Ma.s.sachusetts, New Hampshire, Connecticut, and other States. One of them (Lovejoy) was actually killed by a mob in Illinois as late as 1837.

These facts prove incontestably that the sectional hostility which exhibited itself in 1820, on the application of Missouri for admission into the Union, which again broke out on the proposition for the annexation of Texas in 1844, and which reappeared after the Mexican war, never again to be suppressed until its fell results had been fully accomplished, was not the consequence of any difference on the abstract question of slavery. It was the offspring of sectional rivalry and political ambition. It would have manifested itself just as certainly if slavery had existed in all the States, or if there had not been a negro in America. No such pretension was made in 1803 or 1811, when the Louisiana purchase, and afterward the admission into the Union of the State of that name, elicited threats of disunion from the representatives of New England. The complaint was not of slavery, but of "the acquisition of more weight at the other extremity" of the Union. It was not slavery that threatened a rupture in 1832, but the unjust and unequal operation of a protective tariff.

It happened, however, on all these occasions, that the line of demarkation of sectional interests coincided exactly or very nearly with that dividing the States in which negro servitude existed from those in which it had been abolished. It corresponded with the prediction of Mr. Pickering, in 1803, that, in the separation certainly to come, "the white and black population would mark the boundary"-a prediction made without any reference to slavery as a source of dissension.

Of course, the diversity of inst.i.tutions contributed, in some minor degree, to the conflict of interests. There is an action and reaction of cause and consequence, which limits and modifies any general statement of a political truth. I am stating general principles-not defining modifications and exceptions with the [pg 80] precision of a mathematical proposition or a bill in chancery. The truth remains intact and incontrovertible, that the existence of African servitude was in no wise the cause of the conflict, but only an incident. In the later controversies that arose, however, its effect in operating as a lever upon the pa.s.sions, prejudices, or sympathies of mankind, was so potent that it has been spread, like a thick cloud, over the whole horizon of historic truth.

As for the inst.i.tution of negro servitude, it was a matter entirely subject to the control of the States. No power was ever given to the General Government to interfere with it, but an obligation was imposed to protect it. Its existence and validity were distinctly recognized by the Const.i.tution in at least three places:

First, in that part of the second section of the first article which prescribes that "representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective members, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and, excluding Indians not taxed, three fifths of all other persons." "Other persons" than "free persons" and those "bound to service for a term of years" must, of course, have meant those permanently bound to service.

Secondly, it was recognized by the ninth section of the same article, which provided that "the migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by Congress prior to the year one thousand eight hundred and eight." This was a provision inserted for the protection of the interests of the slave-trading New England States, forbidding any prohibition of the trade by Congress for twenty years, and thus virtually giving sanction to the legitimacy of the demand which that trade was prosecuted to supply, and which was its only object.

Again, and in the third place, it was specially recognized, and an obligation imposed upon every State, not only to refrain from interfering with it in any other State, but in certain cases to aid in its enforcement, by that clause, or paragraph, [pg 81] of the second section of the fourth article which provides as follows:

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

The President and Vice-President of the United States, every Senator and Representative in Congress, the members of every State Legislature, and "all executive and judicial officers, both of the United States and of the several States," were required to take an oath (or affirmation) to support the Const.i.tution containing these provisions. It is easy to understand how those who considered them in conflict with the "higher law" of religion or morality might refuse to take such an oath or hold such an office-as the members of some religious sects refuse to take any oath at all or to bear arms in the service of their country-but it is impossible to reconcile with the obligations of honor or honesty the conduct of those who, having taken such an oath, made use of the powers and opportunities of the offices held under its sanctions to nullify its obligations and neutralize its guarantees. The halls of Congress afforded the vantage-ground from which a.s.saults were made upon these guarantees. The Legislatures of various Northern States enacted laws to hinder the execution of the provisions made for the rendition of fugitives from service; State officials lent their aid to the work of thwarting them; and city mobs a.s.sailed the officers engaged in the duty of enforcing them.

With regard to the provision of the Const.i.tution above quoted, for the restoration of fugitives from service or labor, my own view was, and is, that it was not a proper subject for legislation by the Federal Congress, but that its enforcement should have been left to the respective States, which, as parties to the compact of union, should have been held accountable for its fulfillment. Such was actually the case in the earlier and better days of the republic. No fugitive slave-law existed, or was required, for two years after the organization of the Federal [pg 82] Government, and, when one was then pa.s.sed, it was merely as an incidental appendage to an act regulating the mode of rendition of fugitives from justice-not from service or labor.27

In 1850 a more elaborate law was enacted as part of the celebrated compromise of that year. But the very fact that the Federal Government had taken the matter into its own hands, and provided for its execution by its own officers, afforded a sort of pretext to those States which had now become hostile to this provision of the Const.i.tution, not only to stand aloof, but in some cases to adopt measures (generally known as "personal liberty laws") directly in conflict with the execution of the provisions of the Const.i.tution.

The preamble to the Const.i.tution declared the object of its founders to be, "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." Now, however (in 1860), the people of a portion of the States had a.s.sumed an att.i.tude of avowed hostility, not only to the provisions of the Const.i.tution itself, but to the "domestic tranquillity" of the people of other States. Long before the formation of the Const.i.tution, one of the charges preferred in the Declaration of Independence against the Government of Great Britain, as justifying the separation of the colonies from that country, was that of having "excited [pg 83] domestic insurrections among us." Now, the mails were burdened with incendiary publications, secret emissaries had been sent, and in one case an armed invasion of one of the States had taken place for the very purpose of exciting "domestic insurrection."

It was not the pa.s.sage of the "personal liberty laws," it was not the circulation of incendiary doc.u.ments, it was not the raid of John Brown, it was not the operation of unjust and unequal tariff laws, nor all combined, that const.i.tuted the intolerable grievance, but it was the systematic and persistent struggle to deprive the Southern States of equality in the Union-generally to discriminate in legislation against the interests of their people; culminating in their exclusion from the Territories, the common property of the States, as well as by the infraction of their compact to promote domestic tranquillity.

The question with regard to the Territories has been discussed in the foregoing chapters, and the argument need not be repeated. There was, however, one feature of it which has not been specially noticed, although it occupied a large share of public attention at the time, and const.i.tuted an important element in the case. This was the action of the Federal judiciary thereon, and the manner in which it was received.

In 1854 a case (the well-known "Dred Scott case") came before the Supreme Court of the United States, involving the whole question of the status of the African race and the rights of citizens of the Southern States to migrate to the Territories, temporarily or permanently, with their slave property, on a footing of equality with the citizens of other States with their property of any sort. This question, as we have seen, had already been the subject of long and energetic discussion, without any satisfactory conclusion. All parties, however, had united in declaring, that a decision by the Supreme Court of the United States-the highest judicial tribunal in the land-would be accepted as final. After long and patient consideration of the case, in 1857, the decision of the Court was p.r.o.nounced in an elaborate and exhaustive opinion, delivered by Chief-Justice Taney-a man eminent as a lawyer, great as a statesman, and stainless in his moral reputation-seven of the nine judges who [pg 84] composed the Court, concurring in it. The salient points established by this decision were:

1. That persons of the African race were not, and could not be, acknowledged as "part of the people," or citizens, under the Const.i.tution of the United States;

2. That Congress had no right to exclude citizens of the South from taking their negro servants, as any other property, into any part of the common territory, and that they were ent.i.tled to claim its protection therein;

3. And, finally, as a consequence of the principle just above stated, that the Missouri Compromise of 1820, in so far as it prohibited the existence of African servitude north of a designated line, was unconst.i.tutional and void.28 (It will be remembered that it had already been declared "inoperative and void" by the Kansas-Nebraska Bill of 1854.)

Instead of accepting the decision of this then august tribunal-the [pg 85] ultimate authority in the interpretation of const.i.tutional questions-as conclusive of a controversy that had so long disturbed the peace and was threatening the perpetuity of the Union, it was flouted, denounced, and utterly disregarded by the Northern agitators, and served only to stimulate the intensity of their sectional hostility.

What resource for justice-what a.s.surance of tranquillity-what guarantee of safety-now remained for the South? Still forbearing, still hoping, still striving for peace and union, we waited until a sectional President, nominated by a sectional convention, elected by a sectional vote-and that the vote of a minority of the people-was about to be inducted into office, under the warning of his own distinct announcement that the Union could not permanently endure "half slave and half free"; meaning thereby that it could not continue to exist in the condition in which it was formed and its Const.i.tution adopted. The leader of his party, who was to be the chief of his Cabinet, was the man who had first proclaimed an "irrepressible conflict" between the North and the South, and who had declared that abolitionism, having triumphed in the Territories, would proceed to the invasion of the States. Even then the Southern people did not finally despair until the temper of the triumphant party had been tested in Congress and found adverse to any terms of reconciliation consistent with the honor and safety of all parties.

No alternative remained except to seek the security out of the Union which they had vainly tried to obtain within it. The hope of our people may be stated in a sentence. It was to escape from injury and strife in the Union, to find prosperity and peace out of it. The mode and principles of their action will next be presented.

Footnote 27: (return) "There was but little necessity in those times, nor long after, for an act of Congress to authorize the recovery of fugitive slaves. The laws of the free States and, still more, the force of public opinion were the owners' best safeguards. Public opinion was against the abduction of slaves; and, if any one was seduced from his owner, it was done furtively and secretly, without show or force, and as any other moral offense would be committed. State laws favored the owner, and to a greater extent than the act of Congress did or could. In Pennsylvania there was an act (it was pa.s.sed in 1780, and only repealed in 1847) discriminating between the traveler and sojourner and the permanent resident, allowing the former to remain six months in the State before his slaves would become subject to the emanc.i.p.ation laws; and, in the case of a Federal officer, allowing as much more time as his duties required him to remain. New York had the same act, only varying in time, which was nine months. While these two acts were in force, and supported by public opinion, the traveler and sojourner was safe with his slaves in those States, and the same in the other free States. There was no trouble about fugitive slaves in those times."-(Note to Benton's "Abridgment of Debates," vol. i, p. 417.)

Footnote 28: (return) The Supreme Court of the United States in stating (through Chief-Justice Taney) their decision in the "Dred Scott case," in 1857, say: "In that portion of the United States where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence; and, when the Const.i.tution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race, but because it was discovered from experience that slave-labor was unsuited to the climate and productions of these States; for some of these States, when it had ceased, or nearly ceased, to exist, were actively engaged in the slave-trade; procuring cargoes on the coast of Africa, and transporting them for sale to those parts of the Union where their labor was found to be profitable and suited to the climate and productions. And this traffic was openly carried on, and fortunes acc.u.mulated by it, without reproach from the people of the States where they resided."

This statement, it must be remembered, does not proceed from any partisan source, but is extracted from a judicial opinion p.r.o.nounced by the highest court in the country. In ill.u.s.tration of the truthfulness of the latter part of it, may be mentioned the fact that a citizen of Rhode Island (James D'Wolf), long and largely concerned in the slave-trade, was sent from that State to the Senate of the United States as late as the year 1821. In 1825 he resigned his seat in the Senate and removed to Havana, where he lived for many years, actively engaged in the same pursuit, as president of a slave-trading company. The story is told of him that, on being informed that the "trade" was to be declared piracy, he smiled and said, "So much the better for us-the Yankees will be the only people not scared off by such a declaration."

[pg 86]

PART II.

THE CONSt.i.tUTION.

CHAPTER I.

The Original Confederation.-"Articles of Confederation and Perpetual Union."-Their Inadequacy ascertained.-Commercial Difficulties.-The Conference at Annapolis.-Recommendation of a General Convention.-Resolution of Congress.-Action of the Several States.-Conclusions drawn therefrom.

When certain American colonies of Great Britain, each acting for itself, although in concert with the others, determined to dissolve their political connection with the mother-country, they sent their representatives to a general Congress of those colonies, and through them made a declaration that the Colonies were, and of right ought to be, "free and independent States." As such they contracted an alliance for their "common defense," successfully resisted the effort to reduce them to submission, and secured the recognition by Great Britain of their separate independence; each State being distinctly recognized under its own name-not as one of a group or nation. That this was not merely a foreign view is evident from the second of the "Articles of Confederation" between the States, adopted subsequently to the Declaration of Independence, which is in these words: "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress a.s.sembled."

These "Articles of Confederation and Perpetual Union between the States," as they were styled in their t.i.tle, were [pg 87] adopted by eleven of the original States in 1778, and by the other two in the course of the three years next ensuing, and continued in force until 1789. During this period the General Government was vested in the Congress alone, in which each State, through its representatives, had an equal vote in the determination of all questions whatever. The Congress exercised all the executive as well as legislative powers delegated by the States. When not in session the general management of affairs was intrusted to a "Committee of the States," consisting of one delegate from each State. Provision was made for the creation, by the Congress, of courts having a certain specified jurisdiction in admiralty and maritime cases, and for the settlement of controversies between two or more States in a mode specifically prescribed.

The Government thus const.i.tuted was found inadequate for some necessary purposes, and it became requisite to reorganize it. The first idea of such reorganization arose from the necessity of regulating the commercial intercourse of the States with one another and with foreign countries, and also of making some provision for payment of the debt contracted during the war for independence. These exigencies led to a proposition for a meeting of commissioners from the various States to consider the subject. Such a meeting was held at Annapolis in September, 1786; but, as only five States (New York, New Jersey, Delaware, Pennsylvania, and Virginia) were represented, the Commissioners declined to take any action further than to recommend another Convention, with a wider scope for consideration. As they expressed it, it was their "unanimous conviction that it may essentially tend to advance the interests of the Union, if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavors to procure the concurrence of the other States, in the appointment of commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the Const.i.tution of the Federal Government adequate to the exigencies of the Union, and to report such an act for that purpose to the United States in Congress [pg 88] a.s.sembled, as, when agreed to by them, and afterward confirmed by the Legislatures of every State, will effectually provide for the same."

It is scarcely necessary to remind the well-informed reader that the terms, "Const.i.tution of the Federal Government," employed above, and "Federal Const.i.tution," as used in other proceedings of that period, do not mean the instrument to which we now apply them; and which was not then in existence. They were applied to the system of government formulated in the Articles of Confederation. This is in strict accord with the definition of the word const.i.tution, given by an eminent lexicographer:29 "The body of fundamental laws, as contained in written doc.u.ments or prescriptive usage, which const.i.tute the form of government for a nation, state, community, a.s.sociation, or society."30 Thus we speak of the British Const.i.tution, which is an unwritten system of "prescriptive usage"; of the Const.i.tution of Ma.s.sachusetts or of Mississippi, which is the fundamental or organic law of a particular State embodied in a written instrument; and of the Federal Const.i.tution of the United States, which is the fundamental law of an a.s.sociation of States, at first as embraced in the Articles of Confederation, and afterward as revised, amended, enlarged, and embodied in the instrument framed in 1787, and subsequently adopted by the various States. The manner in which this revision was effected was as follows. Acting on the suggestion of the Annapolis Convention, the Congress, on the 21st of the ensuing February (1787), adopted the following resolution:

"Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures, [pg 89] such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Const.i.tution adequate to the exigencies of Government and the preservation of the Union."

The language of this resolution, substantially according with that of the recommendation made by the commissioners at Annapolis a few months before, very clearly defines the objects of the proposed Convention and the powers which it was thought advisable that the States should confer upon their delegates. These were, "solely and expressly," as follows:

1. "To revise the Articles of Confederation with reference to the 'situation of the United States';

2. "To devise such alterations and provisions therein as should seem to them requisite in order to render 'the Federal Const.i.tution,' or 'Const.i.tution of the Federal Government,' adequate to 'the exigencies of the Union,' or 'the exigencies of the Government and the preservation of the Union';

3. "To report the result of their deliberations-that is, the 'alterations and provisions' which they should agree to recommend-to Congress and the Legislatures of the several States."

Of course, their action could be only advisory until ratified by the States. The "Articles of Confederation and Perpetual Union," under which the States were already united, provided that no alteration should be made in any of them, "unless such alteration be agreed to in a Congress of the United States, and afterward confirmed by the Legislatures of every State."

The Legislatures of the various States, with the exception of Rhode Island, adopted and proceeded to act upon these suggestions by the appointment of delegates-some of them immediately upon the recommendation of the Annapolis Commissioners in advance of that of the Congress, and the others in the course of a few months after the resolution adopted by Congress. The instructions given to these delegates in all cases conformed to the recommendations which have been quoted, and in one case imposed an additional restriction or limitation. As this is a matter of much importance, in order to a right understanding of what follows, it may be advisable to cite in detail the action of [pg 90] the several States, italicizing such pa.s.sages as are specially significant of the duties and powers of the delegates to the Convention.

The General a.s.sembly of Virginia, after reciting the recommendation made at Annapolis, enacted: "That seven commissioners be appointed by joint ballot of both Houses of a.s.sembly, who, or any three of them, are hereby authorized, as deputies from this Commonwealth, to meet such deputies as may be appointed and authorized by other States, to a.s.semble in convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Const.i.tution adequate to the exigencies of the Union, and in reporting such an act for that purpose to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same."

The Council and a.s.sembly of New Jersey issued commissions to their delegates to meet such commissioners as have been, or may be, appointed by the other States of the Union, at the city of Philadelphia, in the Commonwealth of Pennsylvania, on the second Monday in May next, "for the purpose of taking into consideration the state of the Union as to trade and other important objects, and of devising such other provisions as shall appear to be necessary to render the Const.i.tution of the Federal Government adequate to the exigencies thereof."

The act of the General a.s.sembly of Pennsylvania const.i.tuted and appointed certain deputies, designated by name, "with powers to meet such deputies as may be appointed and authorized by the other States ... and to join with them in devising, deliberating on, and discussing all such alterations and further provisions as may be necessary to render the Federal Const.i.tution fully adequate to the exigencies of the Union, and in reporting such act or acts for that purpose, to the United States in Congress a.s.sembled, as, when agreed to by them and duly confirmed by the several States, will effectually provide for the same."

The General a.s.sembly of North Carolina enacted that commissioners should be appointed by joint ballot of both Houses, [pg 91] "to meet and confer with such deputies as may be appointed by the other States for similar purposes, and with them to discuss and decide upon the most effectual means to remove the defects of our Federal Union, and to procure the enlarged purposes which it was intended to effect; and that they report such an act to the General a.s.sembly of this State, as, when agreed to by them, will effectually provide for the same." (In the case of this State alone nothing is said of a report to Congress. Neither North Carolina nor any other State, however, fails to make mention of the necessity of a submission of any action taken to the several States for ratification.)

The commissions issued to the representatives of South Carolina, by the Governor, refer to an act of the Legislature of that State authorizing their appointment "to meet such deputies or commissioners as may be appointed and authorized by other of the United States," at the time and place designated, and to join with them "in devising and discussing all such alterations, clauses, articles, and provisions, as may be thought necessary to render the Federal Const.i.tution entirely adequate to the actual situation and future good government of the Confederate States," and to "join in reporting such an act to the United States in Congress a.s.sembled, as, when approved and agreed to by them, and duly ratified and confirmed by the several States, will effectually provide for the exigencies of the Union." In these commissions the expression, "alterations, clauses, articles, and provisions," clearly indicates the character of the duties which the deputies were expected to discharge.

The General a.s.sembly of Georgia "ordained" the appointment of certain commissioners, specified by name, who were "authorized, as deputies from this State, to meet such deputies as may be appointed and authorized by other States, to a.s.semble in convention at Philadelphia, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Const.i.tution adequate to the exigencies of the Union, and in reporting such an act for that purpose to the United States in Congress a.s.sembled, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same."

[pg 92]

The authority conferred upon their delegates by the a.s.sembly of New York and the General Court of Ma.s.sachusetts was in each case expressed in the exact words of the advisory resolution of Congress: they were instructed to meet the delegates of the other States "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and to the several Legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the several States, render the Federal Const.i.tution adequate to the exigencies of the Union."

The General a.s.sembly of Connecticut designated the delegates of that State by name, and empowered them, in conference with the delegates of other States, "to discuss upon such alterations and provisions, agreeable to the general principles of republican government, as they shall think proper to render the Federal Const.i.tution adequate to the exigencies of the Government and the preservation of the Union," and "to report such alterations and provisions as may be agreed to by a majority of the United States in convention, to the Congress of the United States and to the General a.s.sembly of this State."

The General Court of New Hampshire authorized and empowered the deputies of that State, in conference with those of other States, "to discuss and decide upon the most effectual means to remedy the defects of our Federal Union, and to procure and secure the enlarged purposes which it was intended to effect"-language almost identical with that of North Carolina, but, like the other States in general, instructed them to report the result of their deliberations to Congress for the action of that body, and subsequent confirmation "by the several States."