CHAPTER IV.

WHAT ARE THE LEGAL MEANS OF ABOLISHING SLAVERY?

§ 1. THE POWERS OF CONGRESS IN ACCORDANCE WITH THE CONSTITUTION.

To the most urgent entreaties, the politicians of the United States have, for forty years, opposed this sole

answer: —

Slavery is a terrible scourge; but there is no remedy. In England and France, indeed, the form of government permits the question to be settled by law. In America, the central power is naught; it has not the right to abolish slavery in the individual States, and if it had, it could not exercise this right, on one hand, without the concurrence of a majority in Congress, which is becoming more and more favorable to slavery, and, on the other, without violating the Constitution by which it is authorized.

Is not this to calumniate the power of the Constitution? Is it not to diminish the authority of Congress?

I.

The question de facto admits of no doubt.

Yes, even before the Secession crisis occurred, the majority in Congress would not have been in favor of emancipation; and if this violent crisis should end amicably, the same obstacle will again be found.

Lamentable confession!

Could there be a more manifest

proof of the ravages of this scourge, than this predominance

of a monstrous opinion in a government, the founders of which have deserved, before God and man, the name of Fathers of Liberty, as we say, the Fathers of the Church? But upon what is based this majority in favor of slavery? In great part, strange as it may seem, upon slavery itself. It is known that the Constitution accords to the Free States a number of representatives proportioned to the number of inhabitants, in which latter number it includes all persons other than citizens, that is to say, slaves, in the proportion of four slaves to three freemen. This singular measure, by the successive increase of the slave population, has had the following result. From 1789 to 1798, the South gained 7 representatives; from 1795 to 1813, 14; from 1813 to 1823, 19; from 1823 to 1833, 22; and from 1833 to 1843, 24. By the terms of the last electoral bill (Apportionment Bill), one representative has been accorded for 70,680 freemen, or a proportionate number of slaves; thanks to this arrangement, the South has gained, in a house of 225 members, 20 representatives, or more than one twelfth of the whole number, by reason of its slaves. In 1848, the North had 138 representatives for 9,727,893 inhabitants, or one for 70,492 inhabitants; the South, 87 representatives for 4,848,105 freemen, or one for 55,725 free inhabitants. In the following elections, the South had 117 votes, or one for 41,436 freemen; the North, 166, or one for 52,576 freemen. The unhappy slaves thus contribute increasingly, despite themselves, to send to Congress interested representatives, who are pledged to the maintenance of slavery.

The same calculation serves in the apportionment of the general taxes levied at various times, of which, thanks to its slaves, the South has paid the least, and in the apportionment among the States of the surplus revenues, of which, thanks to its slaves, the South has received the most.*

Removed from letters, arts, and sciences by slavery, the

*Theodore Parker's Letter, 1848, pp. 101, 102.

men of the South have devoted themselves with ardor to politics, because their interests depended on their influence; this, as we have seen,* has become preponderant, and thus the same contagion which infects Congress has invaded the whole administrative hierarchy, the high places most of all.

It is the fashion in the United States to say: "If a majority for freedom cannot be formed in Congress, if emancipation is not decreed, it is the fault of the Abolitionists." We are accustomed in France to this way of reasoning; it is admitted that causes are always better than their partisans ; that the Republic would have endured, but for the Republicans; Legitimacy, but for the Legitimists; and that all reforms are hindered by the Revolutionists. Such assertions are always at once true and false: true, because party excesses are everywhere blamable; false, because resistance to legitimate grievances forms the pretext of these excesses. The wise man does not trouble himself with these external obstacles; without submitting to any constraint, without sharing in any fear, he seeks what is just; if he be in a position to effect it, if he be a legislator, it is his duty to vote for justice, even where it is demanded with unjust violence, even where it is refused by interested influences. In such a case, every public man should call to mind the noble saying of Hamilton, cited by M. de Tocqueville : † "It has more than once happened that a nation, which has been saved from the fatal consequences of its own errors, has delighted in raising monuments of its gratitude to the men who had the magnanimous courage to risk displeasing it in order to serve it."

Should it please God to inspire the conscience of the majority in Congress, what right will it have to act?

Before all things, Congress may undo what it has done. It has intervened by right to permit the pursuit of fugitive * Chap. II. of this work. † Vol. I. p. 247, note.

slaves; it may by right prohibit it. It.has admitted Territories with slavery; it may refuse to admit new ones. It has prohibited the slave-trade, in conformity with the Constitution; it may punish it more severely, it may even interdict it between the States. In this manner the positions occupied by slavery may be one by one regained; it will recede as many paces as it has advanced. No one can refuse to Congress, should the majority change, the right to say no in every case where it had said yes.

But may not Congress do more? May it not openly abolish slavery? This is not believed. Could a majority be formed, it is affirmed that it would be powerless, because the Constitution insures the right of slaveholders.

II.

Let us open the Constitution.

Slavery was wellnigh proscribed.

--

Jefferson proposed

this measure, it lacked but a single vote; the bond which held the infant States together was so fragile, that, for fear of breaking it, it was not insisted on, it was referred to religion, to liberty, to the prohibition of the slave-trade; but being unable to proscribe the thing, the name at least was proscribed; the framer, Madison, did not suffer it to enter a single time into the Constitution. Read the text of the article that treats indirectly of slaves.

Art. I. Sect. II. § 3. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons three fifths of all

other persons."

Art. IV. Sect. II. § 3: "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation

therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."*

We see that the name slave, the word slavery, is not a single time spoken, and the Constitution calls persons those whom the legislation of the South calls things or cattle, chattel.

This silence of the Constitution is an important argument.

A fact of this gravity cannot exist except in virtue of a positive law; it is not self-implied, it is not understood of itself, and doubt, in all legislation in the world, has been always interpreted in favor of liberty.

Two paragraphs are added.

1. The amendment worded thus:

"No person may be deprived of his life, liberty, or property, except in conformity with law." North Carolina and Virginia proposed, no freeman; this term was rejected.

2. The tenth amendment:

"The powers not delegated to the United States by the Constitution, or not interdicted by it to the States, are reserved to these States and to the people."

The powers of the States, therefore, are merely delegated and limited. Now, although the Constitution does not forbid it, have they the right to make a king? No; how then have they the right to make a slave? The one is no more contrary than the other to the spirit of the Constitution.

This spirit is expressed in the Preamble to the Constitution, couched in these memorable terms:

'We, the people of the United States, in order to form a

* Another article (Art. I. Sect. IX. § 1), relative to the slave-trade, has since become useless: "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 the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."