Wednesday, December 09, 2015

7-7-1853: "If a State should authorize search and seizure without legal warrant--or should take private property without compensation--or should forbid the people to "bear arms" . . . would not these be unconstitutional?"

The Constitution and Slavery.

   It has often been charged on the Free Democracy that they are enemies to the Constitution. Never was there a greater libel. Instead of enemies, they are the friends of the Constitution; for in the Constitution, when justly interpreted, they place their hopes of the triumph of their principles. There can be no doubt but the Constitution is and was meant to be an Anti-Slavery instrument. Let it not be said that this is too much to claim ; for we believe such a claim can be sustained by any acknowledged rule of construction; and in support of that belief, we copy from the Christian Press the following condensed, but, as it seems to us, irrefutable argument, challenging any and every doubter, to overthrow its positions, if they can.

   I propose to show that the Constitution of the United States, justly interpreted, absolutely prohibits Slavery in this country.

   This can be done in two ways:

   I. In the direct terms, as is done in the Constitution of Ohio, Indiana, Vermont, &c.

   II. By declaring and guaranteeing rights incompatible with Slavery.

   It may be done in the totter as certainly as in the former.

   In several of the States, as New York, Massachusetts, New Hampshire, &c, Slavery is prohibited only by the Bill of Rights, incorporated in their Constitutions. Yet all admit that Slavery is unconstntional in them as much as in Ohio or Vermont.

   In showing that the United States Constitution forbids, and, if enforced, would prohibit Slavery, I enquire:

   1. Does the Federal Constitution secure to any body personal rights ? and, if so, what rights?
   2. To whom?
   3. Is Slavery compatible with such rights?
   4. Does the United States Constitution guarantee rights? and, what rights?

   (1.) The Constitution was made to secure the blessings of liberly to the people and their posterity. But this can be done only by the security of personal rights.

   (2 ) As first presented to the pnople by the Convention it contained few securities of rights. These were added by way of amendments, and became part and parcel of
our National Organic Law.

   What rights were secured?

   1. Security to person, houses, papers, and effects, against "unreasonable searches and seizures." "Effects" means, doubtless, "possessions." The answering clause in the State Constitutions contains the word ''possessions," instead of "effects," as here.

   No seizure can be made of any body, or any thing, except on legal warrant plainly describing the person, or article to be seized.

   1. The right to the writ of habeas corpus is secured to all. It properly belongs to all, whether citizens or strangers, and no restriction is made to freemen or any other class of persons. The writ is a mandate to the person holding another person in custody, commanding him to bring the person thus held before the court, and show the authority by which he holds him. Of course, it is a means of delivery from illegal and improper detentions.

   3. The right to "bear arms"--the right of full and impartial trial by jury in all eases, except civil suits of a less amount than twenty dollars--freedom from liability to be twice put in jeopardy for the same offense--freedom from compulsion to testify against one's self--security against taking private property for public use without compensation--security against excessive bail, and cruel and unusual punishments--and finally, security of life, liberty, and property.

   All these are secured to all, of all classes, without exception. It is remarkable that in the original draft, Art. 7th of Amendments, was proposed to read "No free person." That was rejected, and it was made to reed " No person."

   All the natural rights of man, without reservation or exception. Art. 9th. " The enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people." This is manifestly a saving clause securing all rights not especially mentioned. As if it had said : the fact that any rights are herein omitted, shall not be a pretext for denying them, but all the rights belonging to the people shall be held equally sacred, whether herein declared in words or not. Art. 9th is a full and complete guard of all the natural rights of man. It is as if the comprehensive equalizing clause of the Declaration of Independence had been inserted in the Constitution. All will admit that would have prohibited Slavery, since it declares Liberty "inalienable." But Art. 9th is equivalent thereto, nay, even stronger, if possible, since it secures all rights, whether mentioned or not.

   2. To whom?

   I answer, to all "the people," without reservation or exception. Because,

   1. No exception is made.

   2. If it means a part, which part? White people are no more mentioned than colored people--free people than bond. The language is, "The right of the people" to bear arms shall not be questioned. The right'of the people to secure, &c." "No person shall be held to answer," &c., "nor shall any person be subject for the same offense," &c. "nor be deprived of life, liberty, or property, except by due process of law."

   3. If slaves are mentioned at all in the Constitution they are described as "persons," and in no other way, "No person" must mean all, bond or free, white or black, male or female, alien or native born.

   It remains to inquire:

   4. Is a guarantee of such rights compatible with Slavery?

   I answer unhesitatingly, No!

   1. Such a guarantee is held to prohibit Slavery, in at least seven States of this Union. If it does not, then Slavery is constitutional in Maine, Massachusetts, New Hampshire, Connecticut, New York, New Jersey, and Pennsylvania, and the people of those States have no security against enslavement, and hold their liberty at the will of their Legislature.

   2. The enslavement of whites is reckoned unconstitutional. But no special privileges are secured to whites. If none but whites are "people," then they alone are protected, but not othetwise. If one class is protected, then all are, and unless every class is protected against enslavement, then no class is so protected. This cannot be too well considered. But,

   3. Why is the enslavement of whites unconstitutional? Clearly because the posseseion of the rights guaranteed is incompatible with Slavery, that is, if a person is enslaved, those rights are destroyed. But this is as true of a negro, molatto, or quadroon, as of a white person. The enslavement of any person takes away every right guaranteed, which the Constitution solemnly declares shall be taken from none. It avails nothing that State laws authorize Slavery, for if the federal Constitution forbids it, every State, law, custom, or usage, contravening the United States Constitution is null and void.

   More in detail; a man cannot be securo in his person and be a Slave, for he is then under the control of a master. A man cannot enjoy the rights of property and be a slave, for a slave can own no property, since he himself is the property of another. A man cannot be secure as to his dwelling, &c, and be a slave, for a slave, his horse, his effects, his all, are not his own, but his master's to be sei[z]ed, searched, and what not, all at the mere whim or caprice of his owner. In other words, where the rights of person, of dwelling, of property, of conscience, of defence, &c., are secured and enjoyed, Slavery is impossible. Since then the United States Constitution does guarantee the security of such rights; it does, therefore, most absolutely forbid and prohibit Slavery.

   My argument, therefore, reduces itself to three brief and plain propositions, viz:

   1. No person can be secure in his rights of person, dwelling, property, &c., and at the same time be a slave.

   2. A pledge of protection in these rights, is a pledge of protection against enslavement.

   3. The United States Constitution pledges the government to the protection of all the people, and all the people aliko. in the rights of person, house, property, &c. Hence:

   4. It hereby prohibits the enslavement of any.

   That is--

   Slavery in these United Stales is UNCONSTITUTIONAL.

   There can be but one valid objection to the soundness of this argument and conclusion, viz:

   The prohibitions and the requisitions of the amendments to tho Constitution are addressed to the Federal Government and not to the States.

   I answer, if this objection be valid, then the citizens of the States have no protection in the Federal Government against enslavement. If these prohibitions, &c., are on Congress alone, then if any State should enslave half her citizens, there would be no help for it. But is this so? If a State should authorize search and seizure without legal warrant--or should take private property without compensation--or should forbid the people to "bear arms" or should put a man twice in jeopardy for life or limb--or should deny trial by jury--or shouid compel a man to testify against himself in a criminal prosecution, would not these be unconstitutional?

[Green-Mountain Freeman, Montpelier, Vermont, Thursday, July 7, 1853. Volume X. No. 28. Pg. 2]

No comments: