The Unconstitutionality of Slavery Part 13

Kentucky was originally a part of Virginia, and derived her slaves from Virginia. As the const.i.tution of Virginia was always a free one, it gave no authority for slavery in that part of the state which is now Kentucky. Of course Kentucky never had any legal slavery.

Slavery was positively prohibited in all the states included in the Louisiana purchase, by the third article of the treaty of cession--which is in these words:--

Art. 3. "The _inhabitants_" (that is, _all_ the inhabitants,) "of the ceded territory shall be incorporated in the union of the United States, and admitted as soon as possible, _according to the principles of the federal const.i.tution_, to the enjoyment of all the rights, advantages, and immunities of _citizens_ of the United States; and, in the mean time, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."

The cession of Florida to the United States was made on the same terms.

The words of the treaty, on this point, are as follows:--

"Art. 6. The _inhabitants_ of the territories, which his Catholic majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the federal const.i.tution, and admitted to the enjoyment of all the privileges, rights and immunities of the _citizens_ of the United States."

To allow _any_ of the "inhabitants," included in those treaties, to be held as slaves, or denied the rights of citizens.h.i.+p under the United States' const.i.tution, is a plain breach of the treaties.

The const.i.tutions of some of the slave states have provisions like this, viz., that all laws previously in force, shall remain in force until repealed, unless repugnant to this const.i.tution. But I think there is no instance, in which the slave acts, then on their statute books, could be perpetuated by this provision--and for two reasons; 1st. These slave acts were previously unconst.i.tutional, and therefore were not, legally speaking, "laws in force."[30] 2d. Every const.i.tution, I think, that has this provision, has one or more other provisions that _are_ "repugnant"

to the slave acts.

[Footnote 30: This principle would apply, as we have before seen, where the change was from the _colonial_ to a state government. It would also apply to all cases where the change took place, under the const.i.tution of the United States, from a _territorial_ to a state government. It needs no argument to prove that all our territorial statutes, that have purported to authorize slavery, were unconst.i.tutional.]

CHAPTER XIII.

THE CHILDREN OF SLAVES ARE BORN FREE.

The idea that the children of slaves are necessarily born slaves, or that they necessarily follow that _natural law_ of property, which gives the natural increase of property to the owner of the original stock, is an erroneous one.

It is a principle of natural law in regard to property, that a calf belongs to the owner of the cow that bore it; fruit to the owner of the tree or vine on which it grew; and so on. But the principle of _natural law_, which makes a calf belong to the owner of the cow, does not make the child of a slave belong to the owner of the slave--and why? Simply because both cow and calf are _naturally_ subjects of property; while neither men nor children are _naturally_ subjects of property. The law of nature gives no aid to any thing inconsistent with itself. It therefore gives no aid to the transmission of property in man--while it does give aid to the transmission of property in other animals and in things.

Brute animals and things being _naturally_ subjects of property, there are obvious reasons why the natural increase should belong to the owner of the original stock. But men, not being _naturally_ subjects of property, the law of nature will not transmit any right of property acquired in violation of her own authority. The law of nature denies all rights not derived from herself. Of course she cannot perpetuate or transmit such rights--if rights they can be called.

One important reason why a calf belongs to the owner of the cow that bore it, is, _that there is no principle of natural law that can be opposed to that owners.h.i.+p_. For the calf is naturally a subject of property, and if it were not given to the owner of the cow, it would be lawful for any other person to a.s.sume the owners.h.i.+p. No wrong would be done to the animal by so doing. But as man is not naturally a subject of property, and as each separate individual is, on principles of natural law, ent.i.tled to the control of his own person, it is as much a wrong, and as much a violation of natural law, to make a slave of the child of a slave, as to make a slave of any other person. The natural rights of the child to the control of his own person, rise up, from the moment of his birth, in opposition to the transmission to him of any owners.h.i.+p, which, in violation of natural law, has been a.s.serted to the parent.

Natural law may be overborne by arbitrary inst.i.tutions; but she will never aid, or perpetuate them. For her to do so, would be to resist, and even deny her own authority. It would present the case of a principle warring against and overcoming itself. Instead of this, she a.s.serts her own authority on the first opportunity. The moment the arbitrary law expires by its own limitation, natural law resumes her reign. If, therefore, the government declare A to be a slave, natural law may be practically overborne by this arbitrary authority; but she will not herself perpetuate it beyond the person of A--for that would be acting in contradiction to herself.--She will therefore suffer this arbitrary authority to expend itself on the person of A, according to the _letter_ of the arbitrary law; but she will a.s.sert her own authority in favor of the child of A, to whom the letter of the law enslaving A, does not apply.

Slavery is a wrong to each individual enslaved; and not merely to the first of a series. Natural law, therefore, as much forbids the enslaving of the child, as if the wrong of enslaving the parent had never been perpetrated.

Slavery, then, is an arbitrary inst.i.tution throughout. It depends, from first to last, upon the letter of the arbitrary law. Natural law gives it no aid, no extension, no new application, under any circ.u.mstances whatever. Unless, therefore, the letter of the arbitrary law explicitly authorize the enslavement of the child, the child is born free, though the parent were a slave.

If the views that have already been taken of our written const.i.tutions, be correct, no parent has ever yet been legally enslaved in this country; and of course no child. If, however, any one thinks he can place his finger upon any _const.i.tutional_ law, that has enslaved a parent, let him follow that law, and see whether it also expressly authorized the enslavement of the child. If it did not, then the child would be free.

It is no new principle that the child of a slave would be born free, but for an express law to the contrary. Some of the slave codes admit the principle--for they have special provisions that the child shall follow the condition of the mother; thus virtually admitting that, but for such a provision, the child would be free, though the mother were a slave.

Under the const.i.tutions of the states and the United States, it requires as explicit and plenary _const.i.tutional_ authority, to make slaves of the children of slaves, as it would to make slaves of any body else. Is there, in any of the const.i.tutions of this country, any general authority given to the governments, to make slaves of whom they please?

No one will pretend it. Is there, then, any particular authority for making slaves of the children of those, who have previously been held in slavery? If there be, let the advocates of slavery point it out. If there be no such authority, all their statutes declaring that the children of slaves shall follow the condition of their mothers, are void; and those children are free by force of the law of nature.

This law of nature, that all men are born free, was recognized by this country in the Declaration of Independence.--But it was no new principle then. Justinian says, "Captivity and servitude are both contrary to the law of nature; for by that law all men are born free." But the principle was not new with Justinian; it exists in the nature of man, and is as old as man--and the race of man generally has acknowledged it. The exceptions have been special; the rule general.

The const.i.tution of the United States recognizes the principle that all men are born free; for it recognizes the principle that natural birth in the country gives citizens.h.i.+p[31]--which of course implies freedom. And no exception is made to the rule. Of course all born in the country since the adoption of the const.i.tution of the United States, have been born free, whether there were, or were not any legal slaves in the country before that time.

Even the provisions, in the several state const.i.tutions, that the legislatures shall not _emanc.i.p.ate_ slaves, would, if allowed their full effect, unrestrained by the const.i.tution of the United States, hold in slavery only those who were then slaves; it would do nothing towards enslaving their children, and would give the legislatures no authority to enslave them.

It is clear, therefore, that, on this principle alone, slavery would now be extinct in this country, unless there should be an exception of a few aged persons.

[Footnote 31: Art. 2, Sec. 1, Clause 5, "No person, except a _natural born_ citizen,* * * * shall be eligible to the office of President."]