American Eloquence, Volume II. (of 4) by Various

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* * * * *

I would not discourage authorized legislation upon those kindly,
generous, and noble feelings which Providence has given to us for the
best of purposes; but when power to act is under discussion, I will
not look to the end in view, lest I should become indifferent to the
lawfulness of the means. Let us discard from this high constitutional
question all those extrinsic considerations which have been forced
into its discussion. Let us endeavor to approach it with a philosophic
impartiality of temper--with a sincere desire to ascertain the
boundaries of our authority, and a determination to keep our wishes in
subjection to our allegiance to the Constitution.

Slavery, we are told in many a pamphlet, memorial, and speech, with
which the press has lately groaned, is a foul blot upon our otherwise
immaculate reputation. Let this be conceded--yet you are no nearer than
before to the conclusion that you possess power which may deal with
other subjects as effectually as with this. Slavery, we are further
told, with some pomp of metaphor, is a canker at the root of all that
is excellent in this republican empire, a pestilent disease that is
snatching the youthful bloom from its cheek, prostrating its honor and
withering its strength. Be it so--yet if you have power to medicine to
it in the way proposed, and in virtue of the diploma which you claim,
you have also power in the distribution of your political alexipharmics
to present the deadliest drugs to every territory that would become a
State, and bid it drink or remain a colony forever. Slavery, we are also
told, is now "rolling onward with a rapid tide towards the boundless
regions of the West," threatening to doom them to sterility and sorrow,
unless some potent voice can say to it,thus far shalt thou go, and no
farther. Slavery engenders pride and indolence in him who commands, and
inflicts intellectual and moral degradation on him who serves. Slavery,
in fine, is unchristian and abominable. Sir, I shall not stop to deny
that slavery is all this and more; but I shall not think myself the less
authorized to deny that it is for you to stay the course of this dark
torrent, by opposing to it a mound raised up by the labors of this
portentous discretion on the domain of others--a mound which you cannot
erect but through the instrumentality of a trespass of no ordinary
kind--not the comparatively innocent trespass that beats down a few
blades of grass which the first kind sun or the next refreshing shower
may cause to spring again--but that which levels with the ground
the lordliest trees of the forest, and claims immortality for the
destruction which it inflicts.

I shall not, I am sure, be told that I exaggerate this power. It has
been admitted here and elsewhere that I do not. But I want no such
concession. It is manifest that as a discretionary power it is
everything or nothing--that its head is in the clouds, or that it is a
mere figment of enthusiastic speculation--that it has no existence, or
that it is an alarming vortex ready to swallow up all such portions of
the sovereignty of an infant State as you may think fit to cast into
it as preparatory to the introduction into the union of the miserable
residue. No man can contradict me when I say, that if you have this
power, you may squeeze down a new-born sovereign State to the size of a
pigmy, and then taking it between finger and thumb, stick it into some
niche of the Union, and still continue by way of mockery to call it a
State in the sense of the Constitution. You may waste it to a shadow,
and then introduce it into the society of flesh and blood an object of
scorn and derision. You may sweat and reduce it to a thing of skin and
bone, and then place the ominous skeleton beside the ruddy and healthful
members of the Union, that it may have leisure to mourn the lamentable
difference between itself and its companions, to brood over its
disastrous promotion, and to seek in justifiable discontent an
opportunity for separation, and insurrection, and rebellion. What may
you not do by dexterity and perseverance with this terrific power? You
may give to a new State, in the form of terms which it cannot
refuse, (as I shall show you hereafter,) a statute book of a
thousand volumes--providing not for ordinary cases only, but even for
possibilities; you may lay the yoke, no matter whether light or heavy,
upon the necks of the latest posterity; you may send this searching
power into every hamlet for centuries to come, by laws enacted in the
spirit of prophecy, and regulating all those dear relations of domestic
concern which belong to local legislation, and which even local
legislation touches with a delicate and sparing hand. This is the first
inroad. But will it be the last? This provision is but a pioneer for
others of a more desolating aspect. It is that fatal bridge of which
Milton speaks, and when once firmly built, what shall hinder you to pass
it when you please for the purpose of plundering power after power at
the expense of new States, as you will still continue to call them, and
raising up prospective codes irrevocable and immortal, which shall leave
to those States the empty shadows of domestic sovereignty, and convert
them into petty pageants, in themselves contemptible, but rendered
infinitely more so by the contrast of their humble faculties with the
proud and admitted pretensions of those who having doomed them to
the inferiority of vassals, have condescended to take them into their
society and under their protection?

"New States may be admitted by the Congress into this Union." It is
objected that the word "may" imports power, not obligation--a right to
decide--a discretion to grant or refuse.

To this it might be answered that power is duty on many occasions. But
let it be conceded that it is discretionary. What consequence follows?
A power to refuse, in a case like this, does not necessarily involve a
power to exact terms. You must look to the result which is the declared
object of the power. Whether you will arrive at it, or not, may depend
on your will; but you cannot compromise with the result intended and
professed.

What then is the professed result? To admit a State into this Union.

What is that Union? A confederation of States equal in
sovereignty--capable of everything which the Constitution does not
forbid, or authorize Congress to forbid. It is an equal union, between
parties equally sovereign. They were sovereign independently of the
Union. The object of the Union was common protection for the exercise
of already existing sovereignty. The parties gave up a portion of that
sovereignty to insure the remainder. As far as they gave it up by the
common compact they have ceased to be sovereign. The Union provides the
means of defending the residue; and it is into that Union that a new
State is to come. By acceding to it, the new State is placed on the same
footing with the original States. It accedes for the same purpose,
i.e., protection for their unsurrendered sovereignty. If it comes in shorn
of its beams--crippled and disparaged beyond the original States, it is
not into the original Union that it comes. For it is a different sort
of Union. The first was Union _inter pares_. This is a Union between
"_disparates_"--between giants and a dwarf--between power and
feebleness--between full proportioned sovereignties and a miserable
image of power--a thing which that very Union has shrunk and shrivelled
from its just size, instead of preserving it in its true dimensions.

It is into this Union, i. e., the Union of the Federal Constitution,
that you are to admit, or refuse to admit. You can admit into no other.
You cannot make the Union, as to the new State, what it is not as to the
old; for then it is not this Union that you open for the entrance of a
new party. If you make it enter into a new and additional compact, is it
any longer the same Union?

We are told that admitting a State into the Union is a compact. Yes,
but what sort of a compact? A compact that it shall be a member of the
Union, as the Constitution has made it. You cannot new fashion it. You
may make a compact to admit, but when admitted the original compact
prevails. The Union is a compact, with a provision of political power
and agents for the accomplishment of its objects. Vary that compact as
to a new State--give new energy to that political power so as to make it
act with more force upon a new State than upon the old--make the will
of those agents more effectually the arbiter of the fate of a new State
than of the old, and it may be confidently said that the new State has
not entered into this Union, but into another Union. How far the Union
has been varied is another question. But that it has been varied is
clear.

If I am told that by the bill relative to Missouri, you do not legislate
upon a new State, I answer that you do; and I answer further that it is
immaterial whether you do or not. But it is upon Missouri, as a State,
that your terms and conditions are to act. Until Missouri is a State,
the terms and conditions are nothing. You legislate in the shape of
terms and conditions, prospectively--and you so legislate upon it that
when it comes into the Union it is to be bound by a contract degrading
and diminishing its sovereignty--and is to be stripped of rights which
the original parties to the Union did not consent to abandon, and which
that Union (so far as depends upon it) takes under its protection and
guarantee.

Is the right to hold slaves a right which Massachusetts enjoys? If it
is, Massachusetts is under this Union in a different character from
Missouri. The compact of Union for it, is different from the
same compact of Union for Missouri. The power of Congress is
different--everything which depends upon the Union is, in that respect,
different.

But it is immaterial whether you legislate for Missouri as a State or
not. The effect of your legislation is to bring it into the Union with a
portion of its sovereignty taken away.

But it is a State which you are to admit. What is a State in the sense
of the Constitution? It is not a State in the general--but a State as
you find it in the Constitution. A State, generally, is a body politic
or independent political society of men. But the State which you are to
admit must be more or less than this political entity. What must it be?
Ask the constitution. It shows what it means by a State by reference to
the parties to it. It must be such a State as Massachusetts, Virginia,
and the other members of the American confederacy--a State with full
sovereignty except as the constitution restricts it.

* * * * *

In a word, the whole amount of the argument on the other side is, that
you may refuse to admit a new State, and that therefore if you admit,
you may prescribe the terms.

The answer to that argument is--that even if you can refuse, you can
prescribe no terms which are inconsistent with the act you are to do.
You can prescribe no conditions which, if carried into effect, would
make the new State less a sovereign State than, under the Union as it
stands, it would be. You can prescribe no terms which will make
the compact of Union between it and the original States essentially
different from that compact among the original States. You may admit, or
refuse to admit: but if you admit, you must admit a State in the sense
of the Constitution--a State with all such sovereignty as belongs to the
original parties: and it must be into this Union that you are to admit
it, not into a Union of your own dictating, formed out of the existing
Union by qualifications and new compacts, altering its character and
effect, and making it fall short of its protecting energy in reference
to the new State, whilst it acquires an energy of another sort--the
energy of restraint and destruction.

* * * * *

One of the most signal errors with which the argument on the other side
has abounded, is this of considering the proposed restriction as if
levelled at the introduction or establishment of slavery. And hence the
vehement declamation, which, among other things, has informed us that
slavery originated in fraud or violence.

The truth is, that the restriction has no relation, real or pretended,
to the right of making slaves of those who are free, or of introducing
slavery where it does not already exist. It applies to those who are
admitted to be already slaves, and who (with their posterity) would
continue to be slaves if they should remain where they are at present;
and to a place where slavery already exists by the local law. Their
civil condition will not be altered by their removal from Virginia, or
Carolina, to Missouri. They will not be more slaves than they now are.
Their abode, indeed, will be different, but their bondage the same.
Their numbers may possibly be augmented by the diffusion, and I think
they will. But this can only happen because their hardships will be
mitigated, and their comforts increased. The checks to population,
which exist in the older States, will be diminished. The restriction,
therefore does not prevent the establishment of slavery, either with
reference to persons or place; but simply inhibits the removal from
place to place (the law in each being the same) of a slave, or make his
emancipation the consequence of that removal. It acts professedly merely
on slavery as it exists, and thus acting restrains its present lawful
effects. That slavery, like many other human institutions, originated
in fraud or violence, may be conceded: but, however it originated, it is
established among us, and no man seeks a further establishment of it
by new importations of freemen to be converted into slaves. On the
contrary, all are anxious to mitigate its evils, by all the means within
the reach of the appropriate authority, the domestic legislatures of the
different States.

* * * * *

Of the declaration of our independence, which has also been quoted in
support of the perilous doctrines now urged upon us, I need not now
speak at large. I have shown on a former occasion how idle it is to rely
upon that instrument for such a purpose, and I will not fatigue you by
mere repetition. The self-evident truths announced in the Declaration
of Independence are not truths at all, if taken literally; and the
practical conclusions contained in the same passage of that declaration
prove that they were never designed to be so received.

The articles of confederation contain nothing on the subject; whilst the
actual Constitution recognizes the legal existence of slavery by various
provisions. The power of prohibiting the slave trade is involved in that
of regulating commerce, but this is coupled with an express inhibition
to the exercise of it for twenty years. How then can that Constitution
which expressly permits the importation of slaves authorize the National
Government to set on foot a crusade against slavery?

The clause respecting fugitive slaves is affirmative and active in its
effects. It is a direct sanction and positive protection of the right of
the master to the services of his slave as derived under the local laws
of the States. The phraseology in which it is wrapped up still leaves
the intention clear, and the words, "persons held to service or labor
in one State under the laws thereof," have always been interpreted to
extend to the case of slaves, in the various acts of Congress which
have been passed to give efficacy to the provision, and in the judicial
application of those laws. So also in the clause prescribing the ratio
of representation--the phrase, "three-fifths of all other persons,"
is equivalent to slaves, or it means nothing. And yet we are told that
those who are acting under a Constitution which sanctions the existence
of slavery in those States which choose to tolerate it, are at liberty
to hold that no law can sanction its existence.

It is idle to make the rightfulness of an act the measure of sovereign
power. The distinction between sovereign power and the moral right
to exercise it has always been recognized. All political power may be
abused, but is it to stop where abuse may begin? The power of declaring
war is a power of vast capacity for mischief, and capable of inflicting
the most wide-spread desolation. But it is given to Congress without
stint and without measure. Is a citizen, or are the courts of justice
to inquire whether that, or any other law, is just, before they obey or
execute it? And are there any degrees of injustice which will withdraw
from sovereign power the capacity of making a given law?

* * * * *

The power is "to admit new States into this Union," and it may be safely
conceded that here is discretion to admit or refuse. The question is,
what must we do if we do anything? What must we admit, and into what?
The answer is a State--and into this Union.

The distinction between Federal rights and local rights, is an idle
distinction. Because the new State acquires Federal rights, it is not,
therefore, in this Union. The Union is a compact; and is it an equal
party to that compact, because it has equal Federal rights?

How is the Union formed? By equal contributions of power. Make one
member sacrifice more than another, and it becomes unequal. The compact
is of two parts:

1. The thing obtained--Federal rights. 2. The price paid--local
sovereignty.

You may disturb the balance of the Union, either by diminishing the
thing acquired, or increasing the sacrifice paid.

What were the purposes of coming into the Union among the original
States? The States were originally sovereign without limit, as to
foreign and domestic concerns. But being incapable of protecting
themselves singly, they entered into the Union to defend themselves
against foreign violence. The domestic concerns of the people were not,
in general, to be acted on by it. The security of the power, of managing
them by domestic legislature, is one of the great objects of the Union.
The Union is a means, not an end. By requiring greater sacrifices
of domestic power, the end is sacrificed to the means. Suppose the
surrender of all, or nearly all, the domestic powers of legislation were
required; the means would there have swallowed up the end.

The argument that the compact may be enforced, shows that the Federal
predicament changed. The power of the Union not only acts on persons or
citizens, but on the faculty of the government, and restrains it in a
way which the Constitution nowhere authorizes. This new obligation takes
away a right which is expressly "reserved to the people or the States,"
since it is nowhere granted to the government of the Union. You cannot
do indirectly what you cannot do directly. It is said that this Union
is competent to make compacts. Who doubts it? But can you make this
compact? I insist that you cannot make it, because it is repugnant to
the thing to be done.

The effect of such a compact would be to produce that inequality in the
Union, to which the Constitution, in all its provisions, is adverse.
Everything in it looks to equality among the members of the Union. Under
it you cannot produce inequality. Nor can you get before-hand of the
Constitution, and do it by anticipation. Wait until a State is in the
Union, and you cannot do it; yet it is only upon the State in the Union
that what you do begins to act.

But it seems that, although the proposed restrictions may not be
justified by the clause of the Constitution which gives power to admit
new States into the Union, separately considered, there are other parts
of the Constitution which, combined with that clause, will warrant it.
And first, we are informed that there is a clause in this instrument
which declares that Congress shall guarantee to every State a republican
form of government; that slavery and such a form of government are
incompatible; and, finally, as a conclusion from these premises, that
Congress not only have a right, but are bound to exclude slavery from a
new State. Here again, sir, there is an edifying inconsistency between
the argument and the measure which it professes to vindicate. By the
argument it is maintained that Missouri cannot have a republican form of
government, and at the same time tolerate negro slavery. By the measure
it is admitted that Missouri may tolerate slavery, as to persons already
in bondage there, and be nevertheless fit to be received into the Union.
What sort of constitutional mandate is this which can thus be made
to bend and truckle and compromise as if it were a simple rule of
expediency that might admit of exceptions upon motives of countervailing
expediency. There can be no such pliancy in the peremptory provisions of
the Constitution. They cannot be obeyed by moieties and violated in the
same ratio. They must be followed out to their full extent, or treated
with that decent neglect which has at least the merit of forbearing to
render contumacy obtrusive by an ostentatious display of the very duty
which we in part abandon. If the decalogue could be observed in this
casuistical manner, we might be grievous sinners, and yet be liable to
no reproach. We might persist in all our habitual irregularities,
and still be spotless. We might, for example, continue to covet our
neighbors' goods, provided they were the same neighbors whose goods we
had before coveted--and so of all the other commandments.

Will the gentlemen tell us that it is the quantity of slaves, not the
quality of slavery, which takes from a government the republican
form? Will they tell us (for they have not yet told us) that there are
constitutional grounds (to say nothing of common sense) upon which the
slavery which now exists in Missouri may be reconciled with a republican
form of government, while any addition to the number of its slaves (the
quality of slavery remaining the same) from the other States, will
be repugnant to that form, and metamorphose it into some nondescript
government disowned by the Constitution? They cannot have recourse to
the treaty of 1803 for such a distinction, since independently of what I
have before observed on that head, the gentlemen have contended that the
treaty has nothing to do with the matter.

They have cut themselves off from all chance of a convenient distinction
in or out of that treaty, by insisting that slavery beyond the old
United States is rejected by the Constitution, and by the law of God
as discoverable by the aid of either reason or revelation; and moreover
that the treaty does not include the case, and if it did could not make
it better. They have, therefore, completely discredited their own theory
by their own practice, and left us no theory worthy of being seriously
controverted. This peculiarity in reasoning of giving out a universal
principle, and coupling with it a practical concession that it is wholly
fallacious, has indeed run through the greater part of the arguments
on the other side; but it is not, as I think, the more imposing on that
account, or the less liable to the criticism which I have here bestowed
upon it.

* * * * *

But let us proceed to take a rapid glance at the reasons which have been
assigned for this notion that involuntary servitude and a republican
form of government are perfect antipathies. The gentleman from New
Hampshire has defined a republican government to be that in which all
the men participate in its power and privileges; from whence it follows
that where there are slaves, it can have no existence. A definition is
no proof, however, and even if it be dignified (as I think it was) with
the name of a maxim, the matter is not much mended. It is Lord Bacon
who says "That nothing is so easily made as a maxim"; and certainly a
definition is manufactured with equal facility. A political maxim is
the work of induction, and cannot stand against experience, or stand on
anything but experience. But this maxim, or definition, or whatever else
it may be, sets facts at defiance. If you go back to antiquity, you will
obtain no countenance for this hypothesis; and if you look at home you
will gain still less. I have read that Sparta, and Rome, and Athens, and
many others of the ancient family, were republics. They were so in form
undoubtedly--the last approaching nearer to a perfect democracy than any
other government which has yet been known in the world. Judging of
them also by their fruits, they were of the highest order of republics.
Sparta could scarcely be any other than a republic, when a Spartan
matron could say to her son just marching to battle, "Return victorious,
or return no more."

It was the unconquerable spirit of liberty, nurtured by republican
habits and institutions, that illustrated the pass of Thermopylae. Yet
slavery was not only tolerated in Sparta, but was established by one
of the fundamental laws of Lycurgus, having for its object the
encouragement of that very spirit. Attica was full of slaves--yet the
love of liberty was its characteristic. What else was it that foiled the
whole power of Persia at Marathon and Salamis? What other soil than that
which the genial sun of republican freedom illuminated and warmed,
could have produced such men as Leonidas and Miltiades, Themistocles and
Epaminondas? Of Rome it would be superfluous to speak at large. It is
sufficient to name the mighty mistress of the world, before Sylla gave
the first stab to her liberties and the great dictator accomplished
their final ruin, to be reminded of the practicability of union between
civil slavery and an ardent love of liberty cherished by republican
establishments.

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