exactness of its text, and for its masterly display of the fundamental principles of civil and religious liberty.”–_Justice Story, 1 Commentaries_: Sec. 1312.
“It is well known that the Ordinance of 1787 was drawn by the Hon. Nathan Dane, of Massachusetts, and adopted with scarcely a verbal alteration by Congress. It is a noble and imperishable monument to his fame.”–_Id._ note.
The ordinance was reported by a committee, of which Wm. S. Johnson and Charles Pinckney were members. It recites that, “for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments which forever hereafter shall be formed in the said Territory; to provide also for the establishment of States and permanent government, and for their admission to a share in the federal councils, on an equal footing with the original States, at as early periods as may be consistent with the general interest–
“It is hereby ordained and declared, by the authority aforesaid, that the following articles shall be considered as articles of compact between the original States and the people and States in the said Territory, and forever remain unalterable, unless by common consent, to wit:”
“_Art._ 6. There shall be neither slavery nor involuntary servitude in the said Territory otherwise than in the punishment of crimes whereof the party shall have been duly convicted; provided always that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service.”
On passing the ordinance, the ayes and nays were required by Judge Yates, of New York, when it appeared _that his was the only vote in the negative_.
The ordinance of April 23, 1784, was a brief outline of that of ’87. It was reported by a Committee, of which Mr. Jefferson was chairman, and the report contained a slavery prohibition intended to take effect in 1800. This was stricken out of the report, six States voting to retain it–three voting to strike out–one being divided (N.C.), and the others not being represented. (The assent of nine States was necessary to retain any provision.) And this is the vote alluded to by Mr. Lincoln. But subsequently, March 16, 1785, a motion was made by Rufus King to commit a proposition “that there be neither slavery nor involuntary servitude” in any of the Territories; which was carried by the vote of eight States, including Maryland.–_Journal Am. Congress,_ vol. 4, pp. 373, 380, 481, 752.
When, therefore, the ordinance of ’87 came before Congress, on its final passage, the subject of slavery prohibition had been “_agitated_” for nearly three years; and the deliberate and almost unanimous vote of that body upon that question leaves no room to doubt what the fathers believed, and how, in that belief, they acted.]
[Footnote 11:–It singularly and fortunately happens that one of the “thirty-nine,” “while engaged on that instrument,” viz., while advocating its ratification before the Pennsylvania Convention, did express an opinion upon this “precise question,” which opinion was _never_ disputed or doubted, in that or any other Convention, and was accepted by the opponents of the Constitution, as an indisputable fact. This was the celebrated James Wilson, of Pennsylvania. The opinion is as follows:–
MONDAY, _Dec._ 3, 1787.
“With respect to the clause restricting Congress from prohibiting the migration or importation of such persons as any of the States now existing shall think proper to admit, prior to the year 1808: The Hon. gentleman says that this clause is not only dark, but intended to grant to Congress, for that time, the power to admit the importation of slaves. No such thing was intended; but I will tell you what was done, and it gives me high pleasure that so much was done. Under the present Confederation, the States may admit the importation of slaves as long as they please; but by this article, after the year 1808, the Congress will have power to prohibit such importation, notwithstanding the disposition of any State to the contrary. I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind, gradual change which was pursued in Pennsylvania. It is with much satisfaction that I view this power in the general government, whereby they may lay an interdiction on this reproachful trade. But an immediate advantage is also obtained; for a tax or duty may be imposed on such importation, not exceeding $10 for each person; and this, sir, operates as a partial prohibition; it was all that could be obtained. I am sorry it was no more; but from this I think there is reason to hope that yet a few years, and it will be prohibited altogether. _And in the meantime, the new States which are to be formed will be under the control of Congress in this particular, and slaves will never be introduced amongst them_.”–2 _Elliott’s Debates_, 423.
It was argued by Patrick Henry in the Convention in Virginia, as follows:
“May not Congress enact that every black man must fight? Did we not see a little of this in the last war? We were not so hard pushed as to make emancipation general. But acts of Assembly passed, that every slave who would go to the army should be free. Another thing will contribute to bring this event about. Slavery is detested. We feel its fatal effects. We deplore it with all the pity of humanity. Let all these considerations press with full force on the minds of Congress. Let that urbanity which, I trust, will distinguish America, and the necessity of national defence–let all these things operate on their minds, they will search that paper, and see if they have power of manumission. And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power? There is no ambiguous implication, no logical deduction. The paper speaks to the point; they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.”–3 _Elliott’s Debates_, 534.
Edmund Randolph, one of the framers of the Constitution, replied to Mr. Henry, admitting the general force of the argument, but claiming that, because of other provisions, it had no application to the _States_ where slavery _then_ existed; thus conceding that power to exist in Congress as to all territory belonging to the United States.
Dr. Ramsay, a member of the Convention of South Carolina, in his history of the United States, vol. 3, pages 36, 37, says: “Under these liberal principles, Congress, in organizing _colonies_, bound themselves to impart to their inhabitants all the privileges of coequal States, as soon as they were capable of enjoying them. In their infancy, _government was administered for them_ without any expense. As soon as they should have 60,000 inhabitants, they were authorized to call a convention, and, by common consent, to form their own constitution. This being done, they were entitled to representation in Congress, and every right attached to the original States. These privileges are not confined to any particular country or _complexion_. They are communicable to the emancipated slave (for in the new State of Ohio, slavery is altogether prohibited), to the copper-colored native, and all other human beings who, after a competent residence and degree of civilization, are capable of enjoying the blessings of regular government.”]
[Footnote 12:–The Act of 1789, as reported by the Committee, was received and read Thursday, July 16th. The second reading was on Friday, the 17th, when it was committed to the Committee of the whole house, “on Monday next.” On Monday, July 20th, it was considered in Committee of the whole, and ordered to a third reading on the following day; on the 21st, it passed the House, and was sent to the Senate. In the Senate it had its first reading on the same day, and was ordered to a second reading on the following day (July 22d), and on the 4th of August it passed, and on the 7th was approved by the President.]
[Footnote 13:–The “sixteen” represented these States: Langdon and Oilman, New Hampshire; Sherman and Johnson, Connecticut; Morris, Fitzsimmons, and Clymer, Pennsylvania; King, Massachusetts; Paterson, New Jersey; Few and Baldwin, Georgia; Bassett and Read, Delaware; Butler, South Carolina; Carroll, Maryland; and Madison, Virginia]
[Footnote 14:–_Vide_ note 3, _ante_.]
[Footnote 15:–Chap. 28, Sec. 7, U.S. Statutes, 5th Congress, 2d Session.]
[Footnote 16:–Langdon was from New Hampshire, Read from Delaware, and Baldwin from Georgia.]
[Footnote 17:–Chap. 38, Sec. 10, U.S. Statutes, 8th Congress, 1st Session.]
[Footnote 18:–Baldwin was from Georgia, and Dayton from New Jersey.]
[Footnote 19:–Rufus King, who sat in the old Congress, and also in the Convention, as the representative of Massachusetts, removed to New York and was sent by that State to the U.S. Senate of the first Congress. Charles Pinckney was hi the House, as a representative of South Carolina.]
[Footnote 20:–Although Mr. Pinckney opposed “slavery prohibition” in 1820, yet his views, with regard to the _powers_ of the general government, may be better judged by his actions in the Convention:
FRIDAY, _June 8th,_ 1787.–“Mr. Pinckney moved ‘that the National Legislature shall have the power of negativing all laws to be passed by the State Legislatures, which they may judge improper,’ in the room of the clause as it stood reported.
“He grounds his motion on the necessity of one supreme controlling power, and he considers this as the _corner-stone_ of the present system; and hence the necessity of retrenching the State authorities, in order to preserve the good government of the national council.”–T. 400, _Elliott’s Debates_.
And again, THURSDAY, _August 23d,_ 1787, Mr. Pinckney renewed the motion with some modifications.–T. 1409. _Madison Papers_.
And although Mr. Pinckney, as correctly stated by Mr. Lincoln, “steadily voted against slavery prohibition, and against all compromises,” he still regarded the passage of the Missouri Compromise as a great triumph of the South, which is apparent from the following letter:
CONGRESS HALL, _March 2d_, 1820, 3 _o’clock at night_.
DEAR SIR:—I hasten to inform you, that this moment we have carried the question to admit Missouri, and all Louisiana to the southward of 36 deg. 30′, free from the restriction of slavery, and give the South, in a short time, an addition of six, perhaps eight, members to the Senate of the United States. It is considered here by the slaveholding States as a great triumph.
The votes were close–ninety to eighty-six–produced by the seceding and absence of a few moderate men from the North. To the north of 36 deg. 30,’ there is to be, by the present law, restriction; which you will see by the votes, I voted against. But it is at present of no moment; it is a vast tract, uninhabited, only by savages and wild beasts, in which not a foot of the Indian claims to soil is extinguished, and in which, according to the ideas prevalent, no land office will be opened for a great length of time.
With respect, your obedient servant,
CHARLES PINCKNEY.
But conclusive evidence of Mr. Pinckney’s views is furnished in the fact that _he was himself a member of the Committee which reported the Ordinance of_ ’87, and that _on every occasion, when it was under the consideration of Congress, he voted against all amendments_.–_Jour. Am. Congress_, Sept. 29th, 1786. Oct. 4th. When the ordinance came up for its final passage, Mr. Pinckney was sitting in the Convention, and did not take any part in the proceedings of Congress.]
[Footnote 21:–By reference to notes 4, 6, 10, 13, 15, and 16 it will be seen that, of the twenty-three who acted upon the question of prohibition, twelve were from the present slaveholding States.]
[Footnote 22:–_Vide_ notes 5 and 17, _ante_.]
[Footnote 23:–“The remaining sixteen” were Nathaniel Gorham, Massachusetts; Alex. Hamilton, New York; William Livingston and David Brearly, New Jersey; Benjamin Franklin, Jared Ingersoll, James Wilson, and Gouverneur Morris, Pennsylvania; Gunning Bedford, John Dickinson, and Jacob Broom, Delaware; Daniel, of St. Thomas, Jenifer, Maryland; John Blair, Virginia; Richard Dobbs Spaight, North Carolina; and John Rutledge and Charles Cotesworth Pinckney, South Carolina.]
[Footnote 24:–“The only distinction between freedom and slavery consists in this: in the former state, a man is governed by the laws to which he has given his consent, either in person or by his representative; in the latter, he is governed by the will of another. In the one case, his life and property are his own; in the other, they depend upon the pleasure of a master. It is easy to discern which of the two states is preferable. No man in his senses can hesitate in choosing to be free rather than slave…. Were not the disadvantages of slavery too obvious to stand in need of it, I might enumerate and describe the tedious train of calamities inseparable from it. I might show that it is fatal to religion and morality; that it tends to debase the mind, and corrupt its noblest springs of action. I might show that it relaxes the sinews of industry and clips the wings of commerce, and works misery and indigence in every shape.”–HAMILTON, _Works_, vol. 2, pp. 3, 9.
“That you will be pleased to countenance the restoration of _liberty_ to those unhappy _men_, who, alone in this land of freedom, are degraded into perpetual bondage, and who, amidst the general joy of surrounding freemen, are groaning in servile subjection; that you will devise means for removing this inconsistency from the character of the American people; that you will promote mercy and _justice_ toward this distressed race; and that you will step to the _very verge_ of the power vested in you for discouraging every species of traffic in the persons of our fellow-men.”–Philadelphia, Feb. 3rd, 1790. _Franklin’s Petition to Congress for the Abolition of Slavery._
Mr. Gouverneur Morris said: “He never would concur in upholding domestic slavery. It was a notorious institution. It was the curse of heaven on the States where it prevailed…. The admission of slavery into the representation, when fairly explained, comes to this–that the inhabitant of South Carolina or Georgia, who goes to the coast of Africa, and, in defiance of the most sacred laws of humanity, tears away his fellow-creatures from their dearest connections, and damns them to the most cruel bondage, shall have more votes, in a government instituted for the protection of the rights of mankind, than the citizen of Pennsylvania or New Jersey, who views with a laudable horror so notorious a practice…. He would sooner submit himself to a tax for paying for all the negroes in the United States than saddle posterity with such a constitution.”–_Debate on Slave Representation in the Convention. Madison Papers_.]
[Footnote 25:–An eminent jurist (Chancellor Walworth) has said that “The preamble which was prefixed to these amendments, as adopted by Congress, is important to show in what light that body considered them.” (8 _Wend. R.,_ p. 100.) It declares that a number of the State Conventions “having at the time of their adopting the Constitution _expressed_ a _desire_, in order to prevent _misconstruction or abuse of its powers_, that further _declaratory_ and restrictive clauses should be added,” resolved, etc.
This preamble is in substance the preamble affixed to the “Conciliatory Resolutions” of Massachusetts, which were drawn by Chief Justice Parsons, and offered in the Convention as a compromise by John Hancock. (_Life Ch. J. Parsons,_ p. 67.) They were afterward copied and adopted with some additions by New Hampshire.
The fifth amendment, on which the Supreme Court relies, is taken almost literally from the declaration of rights put forth by the Convention of New York, and the clause referred to forms the ninth paragraph of the declaration. The tenth amendment, on which Senator Douglas relies, is taken from the Conciliatory Resolutions, and is the first of those resolutions somewhat modified. Thus, these two amendments, sought to be used for slavery, originated in the two great anti-slavery States, New York and Massachusetts.]
[Footnote 26:–The amendments were proposed by Mr. Madison in the House of Representatives, June 8, 1789. They were adopted by the House, August 24, and some further amendments seem to have been transmitted by the Senate, September 9. The printed journals of the Senate do not state the time of the final passage, and the message transmitting them to the State Legislatures speaks of them as adopted at the first session, begun on the fourth day of March, 1789. The date of the introduction and passage of the act enforcing the Ordinance of ’87 will be found at note 9, _ante_.]
[Footnote 27:–It is singular that while two of the “thirty-nine” were in that Congress of 1819, there was but one (besides Mr. King) of the “seventy-six.” The one was William Smith, of South Carolina. He was then a Senator, and, like Mr. Pinckney, occupied extreme Southern ground.]
[Footnote 28:–The following is an extract from the letter referred to:
“I agree with you cordially in your views in regard to negro slavery. I have long considered it a most serious evil, both socially and politically, and I should rejoice in any feasible scheme to rid our States of such a burden. The Congress of 1787 adopted an ordinance which prohibits the existence of involuntary servitude in our Northwestern Territory forever. I consider it a wise measure. It meets with the approval and assent of nearly every member from the States more immediately interested in slave labor. The prevailing opinion in Virginia is against the spread of slavery in our new Territories, and I trust we shall have a confederation of free States.”
The following extract from a letter of Washington to Robert Morris, April, 12th, 1786, shows how strong were his views, and how clearly he deemed emancipation a subject for legislative enactment: “I can only say that there is no man living who wishes more sincerely than I do to see a plan adopted for the abolition of it; but there is but one proper and effective mode by which it can be accomplished, and that is, BY LEGISLATIVE AUTHORITY, and that, as far as _my suffrage will go, shall never be wanting_.”]
[Footnote 29:–A Committee of five, consisting of Messrs. Mason, Davis, and Fitch (Democrats), and Collamer and Doolittle (Republicans), was appointed Dec. 14, 1859, by the U.S. Senate, to investigate the Harper’s Ferry affair. That Committee was directed, among other things, to inquire: (1) “Whether such invasion and seizure was made under color of any organization intended to subvert the government of any of the States of the Union.” (2) “What was the character and extent of such organisation.” (3) “And whether any citizens of the United States, not present, were implicated therein, or accessory thereto, by contributions of money, arms, munitions, or otherwise.”
The majority of the Committee, Messrs. Mason, Davis, and Fitch, reply to the inquiries as follows:
1. “There will be found in the Appendix a copy of the proceedings of a Convention held at Chatham, Canada, of the Provisional Form of Government there pretended to have been instituted, the object of which clearly was to subvert the government of one or more States, and of course, to that extent, the government of the United States.” By reference to the copy of Proceedings it appears that _nineteen_ persons were present at that Convention, _eight_ of whom were either killed or executed at Charlestown, and one examined before the Committee.
2. “The character of the military organization appears, by the commissions issued to certain of the armed party as captains, lieutenants, etc., a specimen of which will be found in the Appendix.”
(These Commissions are signed by John Brown as Commander-in-Chief, under the Provisional Government, and by J.H. Kagi as Secretary.)
“It clearly appeared that the scheme of Brown was to take with him comparatively but few men; but those had been carefully trained by military instruction previously, and were to act as officers. For his military force he relied, very clearly, on inciting insurrection amongst the Slaves.”
3. “It does not appear that the contributions were made with actual knowledge of the use for which they were designed by Brown, although it does appear that money was freely contributed by those styling themselves the friends of this man Brown, and friends alike of what they styled the cause of freedom (of which they claimed him to be an especial apostle), without inquiring as to the way in which the money would be used by him to advance such pretended cause.”
In concluding the report the majority of the Committee thus characterize the “invasion”: “It was simply the act of lawless ruffians, under the sanction of no public or political authority–distinguishable only from ordinary felonies by the ulterior ends in contemplation by them,” etc.]
[Footnote 30:–The Southampton insurrection, August, 1831, was induced by the remarkable ability of a slave calling himself General Nat Turner. He led his fellow bondsmen to believe that he was acting under the order of Heaven. In proof of this he alleged that the singular appearance of the sun at that time was a divine signal for the commencement of the struggle which would result in the recovery of their freedom. This insurrection resulted in the death of sixty-four white persons, and more than one hundred slaves. The Southampton was the eleventh large insurrection in the Southern States, besides numerous attempts and revolts.]
[Footnote 31:–In March, 1790, the General Assembly of France, on the petition of the _free_ people of color in St. Domingo, many of whom were intelligent and wealthy, passed a decree intended to be in their favor, but so ambiguous as to be construed in favor of both the whites and the blacks. The differences growing out of the decree created two parties–the _whites_ and the people of color; and some blood was shed. In 1791, the blacks again petitioned, and a decree was passed declaring the colored people citizens, who were born of free parents on both sides. This produced great excitement among the whites, and the two parties armed against each other, and horrible massacres and conflagrations followed. Then the Assembly rescinded this last decree, and like results followed, the blacks being the exasperated parties and the aggressors. Then the decree giving citizenship to the blacks was restored, and commissioners were sent out to keep the peace. The commissioners, unable to sustain themselves, between the two parties, with the troops they had, issued a proclamation that all blacks who were willing to range themselves under the banner of the Republic should be free. As a result a very large proportion of the blacks became in fact free. In 1794, the Conventional Assembly _abolished slavery_ throughout the French Colonies. Some years afterward, the French Government sought, with an army of 60,000 men, to reinstate slavery, but were unsuccessful, and then the white planters were driven from the Island.]
[Footnote 32:–_Vide_ Jefferson’s Autobiography, commenced January 6th, 1821. JEFFERSON’S _Works_, vol. 1, p. 49.]
[Footnote 33:–“I am not ashamed or afraid publicly to avow that the election of William H. Seward or Salmon P. Chase, or any such representative of the Republican party, upon a sectional platform, ought to be resisted to the disruption of every tie that binds this Confederacy together. (Applause on the Democratic side of the House.)” _Mr. Curry, of Alabama, in the House of Representatives_.
“Just so sure as the Republican party succeed in electing a sectional man, upon their sectional, anti-slavery platform, breathing destruction and death to the rights of my people, just so sure, in my judgment, the time will have come when the South must and will take an unmistakable and decided action, and then he who dallies is a dastard, and he who doubts is damned! I need not tell what I, a Southern man, will do. I think I may safely speak for the masses of the people of Georgia–that when that event happens, they, in my judgment, will consider it an overt act, a declaration of war, and meet immediately in convention, to take into consideration the mode and measure of redress. That is my position; and if that be treason to the Government, make the most of it.”–_Mr. Gartell, of Georgia, in the House of Representatives_.
“I said to my constituents, and to the people of the capital of my State, on my way here, if such an event did occur,” [_i.e._, the election of a Republican President, upon a Republican platform], “while it would be their duty to determine the course which the State would pursue, it would be my privilege to counsel with them as to what I believed to be the proper course; and I said to them, what I say now, and what I will always say in such an event, that my counsel would be to take independence out of the Union in preference to the loss of constitutional rights, and consequent degradation and dishonor, in it. That is my position, and it is the position which I know the Democratic party of the State of Mississippi will maintain.”–_Gov. McRae, of Mississippi._
“It is useless to attempt to conceal the fact that, in the present temper of the Southern people, it” [_i.e._, the election of a Republican President] “cannot be, and will not be, submitted to. The ‘irrepressible conflict’ doctrine, announced and advocated by the ablest and most distinguished leader of the Republican party, is an open declaration of war against the institution of slavery, wherever it exists; and I would be disloyal to Virginia and the South, if I did not declare that the election of such a man, entertaining such sentiment, and advocating such doctrines, _ought to be resisted by the slaveholding States_. The idea of permitting such a man to have the control and direction of the army and navy of the United States, and the appointment of high judicial and executive officers, POSTMASTERS INCLUDED, _cannot_ be entertained by the South for a moment.”–_Gov. Letcher, of Virginia_.
“Slavery _must_ be maintained–in the Union, if possible; out of it, if necessary: peaceably if we may; forcibly if we must.”–_Senator Iverson, of Georgia_.
“Lincoln and Hamlin, the Black Republican nominees, will be elected in November next, and the South will then decide the great question whether they will submit to the domination of Black Republican rule–the fundamental principle of their organization being an open, undisguised, and declared war upon our social institutions. I believe that the honor and safety of the South, in that contingency, will require the prompt secession of the slaveholding States from the Union; and failing then to obtain from the free States additional and higher guaranties for the protection of our rights and property, that the seceding States should proceed to establish a new government. But while I think such would be the imperative duty of the South, I should emphatically reprobate and repudiate any scheme having for its object the separate secession of South Carolina. If Georgia, Alabama, and Mississippi alone–giving us a portion of the Atlantic and Gulf coasts–would unite with this State in a common secession upon the election of a Black Republican, I would give my consent to the policy.”–_Letter of Hon. James L. Orr, of S.C., to John Martin and others, July_ 23, 1860.]
[Footnote 34:–The Hon. John A. Andrew, of the Boston Bar, made the following analysis of the Dred Scott case in the Massachusetts Legislature. Hon. Caleb Cushing was then a member of that body, but did not question its correctness.
“On the question of possibility of citizenship to one of the Dred Scott color, extraction, and origin, three Justices, viz., Taney, Wayne, and Daniels, held the negative. Nelson and Campbell passed over the plea by which the question was raised. Grier agreed with Nelson. Catron said the question was not open. McLean agreed with Catron, but thought the plea bad. Curtis agreed that the question was open, but attacked the plea, met its averments, and decided that a free-born colored person, native to any State, is a citizen thereof by birth, and is therefore a citizen of the Union, and entitled to sue in the Federal Courts.
“Had a majority of the court directly sustained the plea in abatement, and denied the jurisdiction of the Circuit Court appealed from, then all else they could have said and done would have been done and said in a cause not theirs to try and not theirs to discuss. In the absence of such a majority, one step more was to be taken. And the next step reveals an agreement of six of the Justices, on a point decisive of the cause, and putting an end to all the functions of the court.
“It is this. Scott was first carried to Rock Island, in the State of Illinois, where he remained about two years, before going with his master to Fort Snelling, in the Territory of Wisconsin. His claim to freedom was rested on the alleged effect of his translation from a slave State, and again into a free territory. If, by his removal to Illinois, he became emancipated from his master, the subsequent continuance of his pilgrimage into the Louisiana purchase could not add to his freedom, nor alter the fact. If, by reason of any want or infirmity in the laws of Illinois, or of conformity on his part to their behests, Dred Scott remained a slave while he remained in that State, then–for the sake of learning the effect on him of his territorial residence beyond the Mississippi, and of his marriage and other proceedings there, and the effect of the sojournment and marriage of Harriet, in the same territory, upon herself and her children–it might become needful to advance one other step into the investigation of the law; to inspect the Missouri Compromise, banishing slavery to the south of the line of 36 deg. 30′ in the Louisiana purchase.
“But no exigency of the cause ever demanded or justified that advance; for six of the Justices, including the Chief Justice himself, decided that the _status_ of the plaintiff, as free or slave, was dependent, not upon the laws of the State in which he had been, but of the State of Missouri, in which he was at the commencement of the suit. The Chief Justice asserted that ‘it is now firmly settled by the decisions of the highest court in the State, that Scott and his family, on their return were not free, but were, by the laws of Missouri, the property of the defendant.’ This was the burden of the opinion of Nelson, who declares ‘the question is one solely depending upon the law of Missouri, and that the Federal Court, sitting in the State, and trying the case before us, was bound to follow it.’ It received the emphatic endorsement of Wayne, whose general concurrence was with the Chief Justice. Grier concurred in set terms with Nelson on all ‘the questions discussed by him.’ Campbell says, ‘The claim of the plaintiff to freedom depends upon the effect to be given to his absence from Missouri, in company with his master in Illinois and Minnesota, _and this effect is to be ascertained by reference to the laws of Missouri_.’ Five of the Justices, then (if no more of them), regard the law of Missouri as decisive of the plaintiff’s rights.”]
[Footnote 35:–“Now, as we have already said in an earlier part of this opinion upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, _like an ordinary article of merchandise and property_, was guaranteed to the citizens of the United States in every State that might desire it, for twenty years.”–_Ch. J. Taney_, 19 _How. U.S.R_., p. 451. _Vide_ language of Mr. Madison, note 34, as to “_merchandise_.”]
[Footnote 36:–Not only was the right of property _not_ intended to be “distinctly and expressly affirmed in the Constitution”; but the following extract from Mr. Madison demonstrates that the utmost care was taken to avoid so doing:
“The clause as originally offered [respecting fugitive slaves] read, ‘If any person LEGALLY bound to service or labor in any of the United States shall escape into another State,” etc., etc. (Vol. 3, p. 1456.) In regard to this, Mr. Madison says, “The term ‘_legally’_ was struck out, and the words ‘under the laws thereof,’ inserted after the word State, in compliance with the wish of some who thought the term ‘legally’ equivocal and favoring the idea that slavery was legal in a moral point of view.”–_Ib_., p. 1589.]
[Footnote 37:–We subjoin a portion of the history alluded to by Mr. Lincoln. The following extract relates to the provision of the Constitution relative to the slave trade. (Article I, Sec. 9.)
_25th August_, 1787.–The report of the Committee of eleven being taken up, Gen. [Charles Cotesworth] Pinckney moved to strike out the words “the year 1800,” and insert the words “the year 1808.”
Mr. Gorham seconded the motion.
Mr. Madison–Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character than to say nothing about it in the Constitution.
* * * * *
Mr. Gouverneur Morris was for making the clause read at once–
“The importation of slaves into North Carolina, South Carolina, and Georgia, shall not be prohibited,” etc. This, he said, would be most fair, and would avoid _the _ ambiguity by which, under the power with regard to naturalization, the liberty reserved to the States might be defeated. He wished it to be known, also, that this part of the Constitution was a compliance with those States. If the change of language, however, should be objected to by the members from those States, he should not urge it.
Col. Mason (of Virginia) was not against using the term “slaves,” but against naming North Carolina, South Carolina, and Georgia, lest it should give offence to the people of those States.
Mr. Sherman liked a description better than the terms proposed, which had been declined by the old Congress and were not pleasing to some people.
Mr. Clymer concurred with Mr. Sherman.
Mr. Williamson, of North Carolina, said that _both in opinion and practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in South Carolina and Georgia, on those terms, than to exclude them from the Union_.
Mr. Morris withdrew his motion.
Mr. Dickinson wished the clause to be confined to the States which had not themselves prohibited the importation of slaves, and for that purpose moved to amend the clause so as to read–
“The importation of slaves into such of the States as shall permit the same, shall not be prohibited by the Legislature of the United States, until the year 1808,” which was disagreed to, _nem. con_.
The first part of the report was then agreed to as follows:
“The migration or importation of such persons as the several States now existing shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1808.”
* * * * *
Mr. Sherman was against the second part [“but a tax or duty may be imposed on such migration or importation at a rate not exceeding _the average of the duties laid on imports_”], as acknowledging men to be property by taxing them as such under the _character_ of slaves.
* * * * *
Mr. Madison _thought it wrong to admit in the Constitution the like idea that there could be property in men_. The reason of duties did not hold, as slaves _are not, like merchandise_, consumed.
* * * * *
It was finally agreed, _nem. con_., to make the clause read–
“But a tax or duty may be imposed on such importation, not exceeding _ten dollars_ for each PERSON.”–_Madison Papers, Aug_. 25, 1787.]
[Footnote 38:–Compare this noble passage and that at page 18, with the twaddle of Mr. Orr (note 30), and the slang of Mr. Douglas (note 37).]
[Footnote 39:–That demand has since been made. Says MR. O’CONOR, counsel for the State of Virginia in the _Lemon Case_, page 44: “We claim that under these various provisions of the Federal Constitution, a citizen of Virginia has an immunity against the operation of any law which the State of New York can enact, whilst he is a stranger and wayfarer, or whilst passing through our territory; and that he has absolute protection for all his domestic rights, and for all his rights of property, which under the laws of the United States, and the laws of his own State, he was entitled to, whilst in his own State. We claim this, and neither more NOR LESS.”
Throughout the whole of that case, in which the right to pass through New York with slaves at the pleasure of the slave owners is maintained, it is nowhere contended that the statute is contrary to the Constitution of New York; but that the statute and the Constitution of the State are both contrary to the Constitution of the United States.
The State of Virginia, not content with the decision of our own courts upon the right claimed by them, is now engaged in carrying this, the Lemon case, to the Supreme Court of the United States, hoping by a decision there, in accordance with the intimations in the Dred Scott case, to overthrow the Constitution of New York.
Senator Toombs, of Georgia, has claimed, in the Senate, that laws of Connecticut, Maine, Massachusetts, Michigan, New Hampshire, Ohio, Rhode Island, Vermont, and Wisconsin, for the exclusion of slavery, conceded to be warranted by the State Constitutions, are contrary to the Constitution of the United States, and has asked for the enactment of laws by the General Government which shall override the laws of those States and the Constitutions which authorize them.]
[Footnote 40:–“Policy, humanity, and Christianity, alike forbid the extension of the evils of free society to new people and coming generations.”–_Richmond Enquirer, Jan_. 22, 1856.
“I am satisfied that the mind of the South has undergone a change to this great extent, that it is now the _almost universal belief_ in the South, not only that the condition of African slavery in their midst, is the best condition to which the African race has ever been subjected, but that _it has the effect of ennobling both races, the white and the black_.”–_Senator Mason, of Virginia_.
“I declare again, as I did in reply to the Senator from Wisconsin (Mr. Doolittle), that, in my opinion, slavery is a great moral, social, and political blessing–a blessing to the slave, and a blessing to the master.”–_Mr. Brown, in the Senate, March_ 6, 1860.
“I am a Southern States’ Rights man; I am an African slave-trader. I am one of those Southern men who believe that slavery is right–morally, religiously, socially, and politically.” (Applause.) … “I represent the African Slave-trade interests of that section. (Applause.) I am proud of the position I occupy in that respect. I believe the African Slave-trader is a true missionary and a true Christian.” (Applause.)–_Mr. Gaulden, a delegate from First Congressional District of Georgia, in the Charleston Convention, now a supporter of Mr. Douglas_.
“Ladies and gentlemen, I would gladly speak again, but you see from the tones of my voice that I am unable to. This has been a happy, a glorious day. I shall never forget it. There is a charm about this beautiful day, about this sea air, and especially about that peculiar institution of yours–a clam bake. I think you have the advantage, in that respect, of Southerners. For my own part, I have much more fondness for your clams than I have for their niggers. But every man to his taste.”–_Hon_ _Stephen A. Douglas’s Address at Rocky Point, R.I., Aug._ 2, 1860.]
[Footnote 41:–It is interesting to observe how two profoundly logical minds, though holding extreme, opposite views, have deduced this common conclusion. Says Mr. O’Conor, the eminent leader of the New York Bar, and the counsel for the State of Virginia in the Lemon case, in his speech at Cooper Institute, December 19th, 1859:
“That is the point to which this great argument must come–Is negro slavery unjust? If it is unjust, it violates that first rule of human conduct–‘Render to every man his due.’ If it is unjust, it violates the law of God which says, ‘Love thy neighbor as thyself,’ for that requires that we should perpetrate no injustice. Gentlemen, if it could be maintained that negro slavery was unjust, perhaps I might be prepared–perhaps we all ought to be prepared–to go with that distinguished man to whom allusion is frequently made, and say, ‘There is a higher law which compels us to trample beneath our feet the Constitution established by our fathers, with all the blessings it secures to their children.’ But I insist–and that is the argument which we must meet, and on which we must come to a conclusion that shall govern our actions in the future selection of representatives in the Congress of the United States–insist that negro slavery is not unjust.”]