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Sumner, but of the Ordinance of 1787.1 Mr. Trumbull opened the brief discussion on the twenty-eighth.2 Slavery, he said, had been the cause of most of the strife and sectional contests of the country. The Emancipation Proclamation and the acts of Congress confiscating the property of persons in rebellion, and freeing all slaves allowed by their masters to participate in it, rested on sound constitutional authority; but while these freed many slaves, they did not abolish slavery. Some believed that it could be abolished by an act of Congress, as the numerous petitions asking for such a law indicated; but it was an admitted axiom of the government that Congress had not the right to interfere with slavery in the States. Congress did not depend upon negroes for the overthrow of the rebellion. It had unlimited authority to raise armies by drafting into its service all free men in the country capable of bearing arms. Though it had authority for prosecuting the war, it had no constitutional authority to abolish slavery; that must be done by means of an amendment, ratified by the requisite number of States, -otherwise there would be nothing in the Constitution to prevent any State from re-establishing it. Of the thirtysix States in the Union, the six former slaveholding, which had recently abolished slavery,—together with the free States, might be confidently counted as sufficiently united to pass the amendment. It was assumed that all
1 Senator Henderson's amendment read: “Slavery or involuntary servitude, except as a punishment for crime, shall not exist in the United States." The Trumbull amendment read: “Article III, Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction. Section 2, Congress shall have power to enforce this Article by proper legislation.” Globe, March 28, p. 1313.
2 Globe, pp. 1313-1314.
WILSON AND SAULSBURY.
the free States would adopt it. The few, which hitherto had disfavored the idea, had objected on constitutional grounds, denying the authority of the government to interfere with it; but no free State would deny the power of the people to abolish it by amendment to the Constitution. It was not claimed that the ratification of this amendment would be an end to the rebellion; that consummation must be the work of the national armies; but these would soon vindicate the authority of the Constitution; the Union would soon be restored and freedom everywhere proclaimed.
Senator Wilson, of Massachusetts, characterized the proposed amendment as the crowning act of a series for the restriction and extinction of slavery in America;' and with eloquence rarely heard even in the days of the Civil war, when the Nation was constantly thrilled by words of lofty patriotism, he depicted the splendid consequences of the moral victory for the American people that must follow abolition.? Senator Saulsbury, of Delaware, denied the constitutional authority of the General Government to interfere with the rights of property,—which the amendment must do. Even if ratified by the requisite number of States, it would not be binding upon others that refused their assent, for slavery was a domestic, a State institution. But could twenty-eight States be found that would ratify it? Surely its friends would not expect Arkansas, Tennessee, North Carolina and Louisiana to favor it. Take away the federal soldiers from these States, and not one in fifty of their citizens would approve the amendment, or recognize the authority of Congress; the position of the supporters of the measure in Congress, he said, was wholly unsound.3 "The time for such an
3 Globe, pp. 1364-1367.
1 Globe, p. 1324.
amendment is come,” was the brief reply of Senator Clark, of New Hampshire.
It is noticeable that, as yet, no member urged abolition on the economic grounds familiar to us in the debates in Missouri, Louisiana and Maryland. In Congress, the question was one chiefly of authority. Less importance was to be attached to the opinions of Senators from States, like New Hampshire, Vermont and Massachusetts, which long had been friendly to the African and had earnestly advocated his rights. These States and others in the North less radical might be counted on for the amendment, but its fate would depend upon the vote of the border States. It was, therefore, amidst great expectation, and with profound interest, that Reverdy Johnson of Maryland spoke on the resolution, on the fifth of April.? If, said he, the founders of the government could have foreseen the evil consequences of slavery, they doubtless would have provided for its early removal. Whether or not the cause of the war, slavery was now identified with those in arms against the government. Could the President abolish the institution? There was no authority for the supposition. He must depend upon Congress for the exercise of the war power. It was futile to attempt to emancipate slaves in the seceding States by means of a proclamation with which the armies of the United States did not march from day to day, and which they did not practically execute by getting possession and control of the slaves. The question involved the rights of belliger
1 ents, and it was accepted law that the state of war does not authorize the belligerent to emancipate the slaves of 1
This was the opinion held by John Quincy Adams in
1 Globe, pp. 1367-1370. 2 Globe, pp. 1419-1424,
his controversy with England, in which he had maintained that slaves were private property and entitled by the laws of war to exemption from capture.2 The Senator now declared that he held of less value the opinion which Adams once expressed in debate in the House of Representatives, that slavery might be abolished by means of the war power, in a certain state of public affairs. Congress, by the Constitution, is clothed with authority to declare
Some had maintained that, under this authority, slaves might be emancipated, but in what manner? Nobody would contend that, if Congress declared the slaves in seceded States free, and later, the independence of these States was recognized, that they would be free. Moreover this power must be exercised over the loyal as well as the disloyal States, but the latter were out of the Union; peace, and their domestic institutions, therefore, were beyond the reach of the government of the United States. Because several States had seceded, and, to some extent, had acquired the rights of belligerents toward the United States, did it follow that the government, in the exercise of its power to suppress rebellion and reinstate its authority, could interfere with the loyal States of Maryland, Kentucky or Missouri ?
One man would contend that the admitted sovereignty of the States forbade any amendment intrenching upon their authority; another affirmed that the rights of prop
1 Dispatch of August 22, 1815. “The emancipation of negro slaves is not among the acts of legitimate war. As relates to the owners it is a destruction of private property not warranted by the usages of war.” Adams, Secretary of State, to Rush, July 7, 1820, Instruction to Ministers. Wharton's International Law, Second Edition, Vol. III, p. 250.
2 "It is otherwise when such slaves are material part of the enemies' resources, in which case they become the contraband, and may be emancipated.” See Wharton, Ib., pp. 250-251, where the authorities in support of this doctrine are given.
erty excluded the General Government from interference. The first assertion was fully answered by the Supreme Court, that the sovereignty of the people of the United States, to the extent of the powers conferred upon its Government, and the sovereignty conferred upon the governments of the States by their respective people, were precisely the same, and no more than it would have been if they had been framed and adopted at the same time. From this it would follow that each government was invested with the portion of the sovereignty which the people created. The objection, that the United States had no power to interfere with slavery as a property right, depended on the truth of the saying, that it was not a subject for political interference."2 But did anyone doubt that slavery could have been abolished by the Constitution, originally? Did not slavery prevent the realization of the ends proposed by the Constitution, as stated in its preamble? In the presence of the violation of this purpose, the so-called rights of property vanished. No one claimed that the sovereign power of the American people had diminished with the passage of time; clearly the people could do now what they might have done in 1788. This part of the Senator's speech recalls Madison's defence of the powers of the Federal Convention in the Federalists that it could propose anything to the people for ratification. The practical objection to the measure was the condition of the slaves. They were in absolute ignorance for which they were not responsible, and which should not be suffered to prevent the adoption of the amendment.
1 McCulloch vs. Maryland; 4 Wheaton, p. 316 (1819). Booth Vs. The United States, 21 Howard, p. 506.
2 Senator Saulsbury had maintained this.
3 Number XL, by Madison; Hamilton in the Debates, Elliot, V, 199.