Slavery and the Constitution Part 17

On the 13th of May 1789, in Congress,--

"Mr. Parker (of Va.) moved to insert a clause in the bill, imposing a duty on the importation of slaves of ten dollars each person. He _was sorry that the Const.i.tution prevented Congress from prohibiting the importation altogether_; he thought it a defect in that instrument that it allowed of such actions; it was contrary to the revolution principles, and ought not to be permitted; but, as he could not do all the good he desired, he was willing to do what lay in his power.

"Mr. Sherman (of Ct.) approved of the object of the motion; but he did not think this bill was proper to embrace the subject. He could not reconcile himself to the insertion of human beings, as an article of duty, among goods, wares, and merchandise. He hoped it would be withdrawn for the present, and taken up hereafter as an independent subject.

"Mr. Schureman (of N. J.) hoped the gentleman would withdraw his motion, because the present was not the time or place for introducing the business; he thought it had better be brought forward in the House, as a distinct proposition.

"Mr. Madison (of Va.): I cannot concur with gentlemen who think the present an improper time or place to enter into a discussion of the proposed motion. If it is taken up in a separate view, we shall do the same thing, at a greater expense of time....

"I conceive the Const.i.tution, in this particular, was formed in order that the government, whilst it was restrained from laying a total prohibition, might be able to give some testimony of the sense of America with respect to the African trade. We have liberty to impose a tax or duty upon the importation of such persons as any of the States now existing shall think proper to admit; and this liberty was granted, I presume, upon two considerations: the first was, that, until the time arrived when they might abolish the importation of slaves, they might have an opportunity of evidencing their sentiments on the policy and humanity of such a trade; the other was, that they might be taxed in due proportion with other articles imported; for, if the possessor will consider them as property, of course they are of value, and ought to be paid for."

After a very considerable discussion, in which this section of the Const.i.tution was referred to by various members, and the const.i.tutionality of Mr. Parker's motion admitted, with the advice of Mr. Madison his colleague, Mr. Parker consented to withdraw his motion.

In 1794, "An Act to prohibit the carrying on the slave-trade from the United States to any foreign place or country" was pa.s.sed (Stat. 1794, c. 11). In 1800, an Act in addition to the last was pa.s.sed (Stat. 1800, c. 51). That both these laws were framed with reference to this section of the Const.i.tution is apparent, because the latter Act expressly refers to it. Sec. 6 reads thus, "That nothing in this Act contained shall be construed to authorize the bringing into either of the United States any person or persons, the importation of whom is, by the existing laws of such State, prohibited." In 1803 (Stat. 1803, c. 63) was pa.s.sed "An Act to prevent the importation of certain persons into certain States, where, by the laws thereof, their admission is prohibited."

Sec. 1: "Be it enacted, &c. That, from and after the first day of April next, no master or captain of any s.h.i.+p or vessel, or any other person, shall import or bring, or cause to be imported or brought, any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen, natives of countries beyond the Cape of Good Hope, into any port or place of the United States, which port or place shall be situated in any State which by law has prohibited, or shall prohibit, the admission or importation of such negro, mulatto, or other person of color," &c. &c.

This Act also is most manifestly framed upon this section of the Const.i.tution. It renders illegal the importation of any negro, mulatto, or person of color, into States prohibiting such importation, unless such negro, &c. is a native, citizen, or registered seaman of the United States, or native of countries beyond the Cape of Good Hope; that is, it renders illegal the importation of African negroes into any State whose laws prohibit such importation. And, as no African negro has yet been imported as a free laborer, this Act was directed against the African slave-trade.

And, not to multiply proof, the importation of persons is not to be prohibited by Congress prior to 1808. On the 2d day of March, 1807, President Jefferson approved (Stat. 1807, c. 77) "An Act to prohibit the importation of _slaves_ into any port or place within the jurisdiction of the United States, from and after the _first day of January_, in the year of our Lord _one thousand eight hundred and eight_." That is, at the very earliest day allowed by Const. Art. 1, sec. 9, for the pa.s.sage by Congress of an Act prohibiting the importation of persons, a law is pa.s.sed totally prohibiting the _importation of slaves_.

RESTORATION OF FUGITIVE SLAVES. (Const. Art. 4, sec. 2.)

On the 12th day of February, 1793 (Stat. 1793, chap. 7), there was approved "An Act respecting fugitives from justice, and persons escaping from the service of their masters." This is the law which, for over half a century, has prescribed the modes in which a runaway slave may be retaken. It is what is now called "the infamous law of '93." Thousands of runaway slaves have owed their return to their happy condition to the beneficent operation of this law, obviously framed, as it is, with an eye to this const.i.tutional provision.

Sec. 3 provides that,--

"When a person held to labor in any of the United States, or in either of the territories on the north-west or south of the river Ohio, under the laws thereof, shall escape into any other of the said States or territory, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made; and, upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit, taken before and certified by a magistrate of any such State or territory, that the person so seized or arrested doth, under the laws of the State or territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor to the State or territory from which he or she fled."

SUPPRESSION OF SLAVE INSURRECTIONS. (Const. Art. 1, sec. 8; Art. 4, sec.

4.)

"An Act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," was approved May 2, 1792 (Act Const. 1792, chap. 28). Section first provides that, "_In case of an insurrection in any State_ against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State, or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States as may be applied for, or as he may judge sufficient to suppress such insurrection." Precisely the same language is made use of in Stat. 1795, c. 101. By Act approved March 3, 1807 (Stat. 1807, c. 94), the President is authorized "in _all_ cases of insurrection," "when it is lawful for him to call forth the militia for the purpose of suppressing the same," "to employ for the same purpose such part of the land or naval force of the United States as shall be judged necessary."

That these laws have been held to include an insurrection of slaves is indisputable. On receipt of the intelligence of Nat. Turner's insurrection in Southampton, Va., Col. House, then commanding at Fortress Monroe, set out with three companies of United States troops, for the purpose of suppressing the revolt. He was reinforced by a detachment from the United States s.h.i.+ps Warren and Natchez, amounting in all to about three hundred men. With _our_ troops and _our_ officers we have actually aided the slaveholder in holding his fellow-man in slavery! We have actually done what our fathers engaged in the Const.i.tution that we should do, namely, aid with the national strength in keeping the slaves in subjection!

CHAPTER XV.

THE CONSt.i.tUTION ACCORDING TO THE EXPOSITION OF ITS FINAL INTERPRETER.

"The judicial department of the United States is, in the last resort, the final expositor of the Const.i.tution as to all questions of a judicial nature. Were there no power to interpret, p.r.o.nounce, and execute the law, the government would either perish through its own imbecility, as was the case with the articles of confederation, or other powers must be a.s.sumed by the legislative body, to the destruction of liberty."--_Chancellor Kent._

The people of the United States, in adopting the Const.i.tution, made _one_ standard, _one_ fundamental law, and _only one_. They gave to the government of the United States certain powers. They restricted it as to others. They placed certain prohibitions on the States. The Const.i.tution was to be the one fundamental law of the land, to which all, as well States as people, should submit. Art. 6, sec. 2, provides that the "Const.i.tution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be _the supreme law of the land_; and the judges in every State shall be bound thereby, any thing in the Const.i.tution or laws of any State to the contrary notwithstanding."

Who now is to tell us what this one standard is, to which all must submit, and which is thus to override all State Const.i.tutions and all State laws? Is it the province of each individual to do it? Then we may have at this moment seventeen million different interpretations, and hence as many different Const.i.tutions, each of which, however, is the supreme law of the land! Are the executive or judicial departments of the States the proper expounders? Then, at this moment, we may have only thirty different interpretations, twenty-nine of which must be wrong, because the supreme law can be but one.

In order, therefore, that the end of the Const.i.tution may be accomplished, that it may really be the supreme law of the land, it must have provided a way in which its only true meaning may be ascertained and definitively settled. Unless it has provided a final interpreter of its meaning, it is the merest folly to style it the supreme law of the land, or to call on us to obey its requirement. Is the Const.i.tution thus deficient? Does it demand uniformity, and at the same time deny the use of those means which are absolutely necessary to produce such uniformity? Does it present a variable, ever-changing standard of duty, and yet demand complete uniformity in practice?

There are three departments in the Government, namely, the Executive, the Legislative, and the Judicial. The first two of these are each, to some extent, supreme in its own sphere; and its acts are incapable of revision elsewhere. "Thus, in measures exclusively of a political, legislative, or executive character, it is plain, that, as the supreme authority as to these questions belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus, Congress having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So, the power to make treaties being confided to the President and Senate, when a treaty is properly ratified, it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined, in which a tax may be laid, or a treaty made, upon motions and grounds wholly beside the intention of the Const.i.tution. The remedy, however, in such cases is solely by an appeal to the people at the elections, or by the salutary power of amendment provided by the Const.i.tution itself.

"But, where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very different consideration. The decision then made, whether in favor or against the const.i.tutionality of the Act, by the State or by national authority, by the legislature or by the executive, being capable in its own nature of being brought to the test of the Const.i.tution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the Const.i.tution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union" (Story, Comm. Const. sec. 374, 375); for the Const.i.tution declares, Art. 3, sec. 2, that "the judicial power shall extend to all cases in law and equity arising under this Const.i.tution, the laws of the United States, and treaties made, or which shall be made, under their authority," &c. And Art. 3, sec. 1: "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish."

These const.i.tutional provisions are clear. The Const.i.tution and laws and treaties of the United States are declared to be the supreme law of the land. To expound what the law is, is a judicial act. The judicial power extends to all cases arising under the Const.i.tution, laws, and treaties of the United States. It therefore extends to the exposition of the Const.i.tution, laws, and treaties, when the case before the court properly calls for such exposition. This judicial power, and consequently this power of exposition, it is declared, shall be vested in one supreme court, &c. Most obviously, the exposition given by this one supreme court cannot be overruled by any other const.i.tutional power; else the court is not supreme, else the Const.i.tution is nullified. The decision of the supreme court is the decision of the _only const.i.tutionally authorized expounder of the meaning of the Const.i.tution_; and such exposition, to be supreme, must be final.

What, then, has this final interpreter declared the meaning of these clauses of the Const.i.tution to be?

APPORTIONMENT OF REPRESENTATIVES. (Const. Art. 1, sec. 2.)

On the 5th of June, 1794 (Stat. 1794, c. 45), was approved an Act of Congress, "laying duties upon carriages for the conveyance of persons."

The duty was uniform throughout the States. One Hylton, in Virginia, refused to pay the duty; alleging that the Act was unconst.i.tutional, because the tax was a direct tax within the meaning of the Const.i.tution, and therefore should have been apportioned among the States according to their federal numbers. He was sued by the United States, and finally the case came before the supreme court of the United States for decision.

The following extracts are taken from the opinion of Justice Paterson (Hylton _versus_ the United States, 3 Dallas's Reports, p. 177; 1796):--

"I never entertained a doubt that the princ.i.p.al, I will not say the only, objects that the framers of the Const.i.tution contemplated, as falling within the rule of apportionment, were a capitation-tax and a tax on land. Local considerations, and the particular circ.u.mstances and relative situation of the States, naturally lead to this view of the subject. _The provision was made in favor of the Southern States._ They possessed a large number of _slaves_; they had extensive tracts of territory, thinly settled, and not very productive. A majority of the States had but few _slaves_; and several of them, a limited territory, well-settled, and in a high state of cultivation. The Southern States, if no provision had been introduced in the Const.i.tution, would have been wholly at the mercy of the other States. _Congress, in such case, might tax slaves at discretion or arbitrarily_, and land in every part of the Union.

After the same rate or measure, so much a head in the first instance, and so much an acre in the second. _To guard them against imposition in these particulars was the reason of introducing the clause in the Const.i.tution_ which directs that representatives and direct taxes shall be apportioned among the States, according to their respective numbers."

Page 178: "The rule of apportionment is of this nature: it is radically wrong; it cannot be supported by any solid reasoning. Why should slaves, who are a species of property, be represented more than any other property? The rule, therefore, ought not to be extended by construction."

PERMISSION OF THE AFRICAN SLAVE-TRADE. (Const. Art. 1, sec. 9.)

In the great case of Gibbons _vs._ Ogden, 9 Wheaton's Reports, pp. 206 and 207 (1824), Chief Justice Marshall, delivering the opinion of the supreme court, makes use of the following language:--

"The Act pa.s.sed in 1803 (Act Const. 1803, c. 63), prohibiting the importation of slaves into any State which shall itself prohibit their importation, implies, it is said, an admission that the States possess the power to exclude or admit them; from which it is inferred, that they possess the same power with respect to other articles.

"If this inference were correct; if this power were exercised, not under any particular clause in the Const.i.tution, but in virtue of a general right over the subject of commerce to exist as long as the Const.i.tution itself, it might now be exercised. Any State might now import African slaves into its own territory. But it is obvious that the power of the States over this subject, previous to the year 1808, const.i.tutes an exception to the power of Congress to regulate commerce; and the exception is expressed in such words as to manifest clearly the intention to continue the pre-existing right of the States to admit or exclude for a limited period. The words are, 'The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to 1808.' The whole object of the exception is to preserve the power to those States which might be disposed to exercise it, and its language seems to the court to convey this idea unequivocally."

See also pp. 216, 217.

RESTORATION OF FUGITIVE SLAVES. (Const. Art. 4, sec. 2.)

The following extracts are taken from the opinion of the supreme court in the well-known case, Prigg _vs._ the Commonwealth of Pennsylvania (16 Pet. Rep. 609, &c.). Judge Story delivered the opinion:--

"Historically, it is well known, that the object of this clause was to secure to the citizens of the slaveholding States the complete right and t.i.tle of owners.h.i.+p in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and t.i.tle was indispensable to the security of this species of property in all the slaveholding States; and, indeed, was so vital to the preservation of their domestic interests and inst.i.tutions, that it cannot be doubted that it const.i.tuted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolis.h.i.+ng, the rights of the owners of slaves."