Xiii.
After showing that Slavery finds no support in the Constitution, he glances at the positive provisions by which it is brought completely under the control of Congress,—1. Among the powers of Congress, and associated with the power to lay and collect taxes, is that ‘to provide for the common defence and general welfare.’ In the Virginia Convention, Mr. George Mason, a most decided opponent of the Constitution, said: ‘That Congress should have power to provide for the general welfare of the Union, I grant.’ But Patrick Henry was far more explicit; he foresaw that this power would be directed against Slavery, and he unhesitatingly declared:
Slavery is detested. We feel its fatal effects. We deplore it, with all the pity of humanity. Let all these considerations, at some future period, press with full force on the mind of Congress. Let that urbanity, which, I trust, will distinguish America, and the necessity of of national defence—let all these things operate on their minds. They [472] will search that paper—the Constitution—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? This is no ambiguous implication or logical deduction. The paper speaks to the point —they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.
2. Next comes the fountain. ‘Congress shall have power to declare war, to raise and support armies, to provide and maintain a navy.’ He shows that this power must authorize the government to contract with all enlisted soldiers, and such a contract would be an act of manumission, for a slave cannot make a contract.
3. There is still another clause. ‘The United States shall guarantee to every State in this Union, a Republican form of Government.’ John Adams, in the correspondence of his old age, says: ‘The customary meanings of the words “Republican” and “ Commonwealth” have been infinite. They have been applied to every government under heaven—that of Turkey, and that of Spain, as well as that of Athens, and of Rome; of Geneva and San Marino.’ But the guaranteeing of a Republican form of Government, was too explicit to leave any doubt; and such a form could not embrace involuntary servitude.
4. Another source of power is found in—‘No person shall be deprived of life, liberty or property, without due process of law.’ Liberty can thus be lost, only by ‘due process of law.’ This was the sheet-anchor of all the old Bills of Rights. So Lord Coke defined it as being borrowed from the Common Law. The late Justice Bronson, of New York, in a judicial opinion, said: ‘The meaning of the section, then, seems to be, that no [473] member of the State shall be disfranchised, or deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of the Common Law. * * The words “ due process of law,” in this place, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property.’ He thus argues conclusively that, under these guarantees and prohibitions, no person can be held as a slave.
‘Constitutional slavery,’ Mr. Sumner said, ‘has always been an outlaw wherever that provision of the Constitution was applicable. Nothing against slavery can be unconstitutional: it is hesitation that is unconstitutional. And yet, slavery still exists, in defiance of all these requirements,’ and he demands that it shall be forever abolished, by the supreme authority of the Republic. That authority, he claims, does exist in Congress, which is clothed with the supreme power of legislation; and if this shall be called in question, we have that grand recourse still left,—appealing to the authority which made the Constitution. Therefore he argues for that Amendment which was ultimately to follow the law as enacted by Congress, after the hard struggle Liberty had to go through, to achieve its final victory.
