The Atlantic Monthly, Volume 12, No. 69, July, 1863

Every one is familiar with the words in which the Constitution, while not naming Slavery, recognizes, under a certain phase, its existence, and aids it, under certain circumstances, to maintain the rights to involuntary labor which, under State laws, it claims; thus:—

"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."

The claims to service or labor here referred to may be for years or for life: both are included in the above provision. In point of fact, there were existing, at the time that provision was adopted, (as there still exist,) both classes: the first class, for a term of years, then consisting, in part, of claims against foreign adults who had bound themselves to service for a limited time to repay the expenses of their emigration,—but chiefly, as now, of claims to the service or labor of what were called apprentices, usually white minors; the second, for life, were claims to the service or labor of men, women, and children of all ages, exclusively of African descent, who were called slaves.

The first class of claims were found chiefly in Northern States; the second chiefly in Southern. There was a great disparity between the numbers of the two classes. While the claims to service or labor for years numbered but a few thousands, there were then held to service or labor for life upwards of six hundred thousand persons: and the number has since increased to about four millions.

The constitutional provision is, that persons from whom under State laws service or labor is due shall not be exonerated from the performance of the same by escaping to another State. The apprentice, or the slave, shall, in that case, on demand of the proper claimant, be delivered up.

Such a provision clearly involves the recognition of certain rights of property; but of what kind?

Is the ownership of one human being by another here involved? Is the apprentice, or the slave, recognized in this clause as an article of merchandise?

State laws regulating apprenticeship and slavery may give to the master of the apprentice, or of the slave, the custody of the person and the right of corporal punishment, in order the better to insure the performance of the labor due. These laws may declare that an apprentice, or a slave, who strikes his master, shall suffer death. They may provide that the testimony of an apprentice, or of a slave, shall not be received in any court of justice as evidence against his master. They may make the claims to service or labor, whether for years or for life, transferable by ordinary sale. They may declare such claims to be, under certain circumstances, of the nature of real estate. They may enact that these claims shall be hereditary, both as regards the claimant and the person held to service, so that heirs shall inherit them,—and also so that the children of apprentices, or of slaves, shall, in virtue of their birth, be apprentices or slaves. But State laws or State constitutions, whatever their provisions, cannot modify the Constitution of the United States. The Supreme Court has decided that "the Government of the Union, though limited in its power, is supreme within its sphere of action"; and again, that "the laws of the United States, when made in pursuance of the Constitution, form the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."[7 - "McCulloch against the State of Maryland." 4 Wheaton, Rep., p. 316.]

Therefore State laws or constitutions can neither determine the interpretation of the Federal Constitution nor explain its intent. It is to be interpreted by the words, fairly and candidly construed, of its framers.

In the provision under consideration the phraseology is remarkable. The word slave, though then in common use, to designate a negro held to service or labor for life, is not employed. It is impossible to believe that this peculiarity was accidental, or to overlook the inevitable inference from it. This provision does not recognize slavery except as it recognizes apprenticeship. African slavery, according to the expressly selected words, and therefore according to the manifest intent, of the framers of the Constitution, is here recognized as a claim to the service or labor of a negro: nothing more, nothing else.

It avails nothing to allege, even if it were true, that in 1787, when these words were written, a negro was commonly considered property. Chief-Justice Taney, delivering the decision of the Supreme Court in the Dred Scott case, asserts that in the thirteen colonies which formed the Constitution "a negro of the African race was regarded as an article of property." This may or it may not have been true of a majority in those days. True or not, it refers only to the opinions of individual colonists; and these cannot be received as a basis of construction for the words, nor can they rebut the plain intent, of a constitutional provision. It is not what individual colonists believed, but what the framers of the Constitution incorporated in that instrument, that we have to deal with.

They avoided the use of the word slave. They incorporated the words "person held to service or labor." They admitted the claim to service or labor: none other: a claim (regarded in its constitutional aspect) in the nature of what the law calls a chose in action,—or, in other words, a thing to which, though it cannot be strictly said to be in actual possession, one has a right.

In common parlance we employ words, in connection with Slavery, which imply much more than such a claim. We say slave-holder and slave-owner; we speak of the institution of Slavery: but we do not say apprentice-holder or apprentice-owner; nor do we speak of the institution of Apprenticeship. The reason, whether valid or invalid, for such variance of phraseology in speaking of the two classes of claims, is not to be found in any admission, express or implied, in the provision of the Constitution now under consideration. In it the framers of that instrument employed one and the same phrase to designate the master of the apprentice and the master of the slave. Both are termed "the party to whom service or labor may be due."

Is there any other clause in the Constitution in which a distinction is made between the apprentice and the slave? There is one, and only one. In determining the number of inhabitants in each State as a basis of representation and taxation, it is provided that the whole number of apprentices shall be included, while three-fifths only of the slaves are to be taken into account. But the wording of this clause is especially noteworthy. It reads thus:—

"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, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons."

To avoid mistakes, it was deemed necessary to include apprentices by express specification. Why this? Every one would have felt it to be absurd, if the words had been, "the whole number of free persons, including farm-laborers." But why absurd? Because persons engaged in free labor are, beyond question, free persons. Not so those "bound to service." While so bound, apprentices may be considered not free; when the "term of years," and with it the bondage to service, expires, they become free, or, as the common phrase is, "their own masters." It was necessary and proper, therefore, to specify whether, in the enumeration of inhabitants, they were to be estimated as free persons or as persons not free.

But would there be any fairness in construing this clause into an admission, by inference or otherwise, that an apprentice, while "bound to service," is a slave? Clearly not. He is a person not free for the time, because another has a legal claim to his service or labor. The Constitution admits this: nothing more.

And so of slaves. "Other persons" they are called, in contradistinction to "free persons"; therefore persons not free: and properly so called, seeing that, like the apprentice before his term expires, they are "bound to service," and that, unlike him, they remain thus bound for life.

But unless we admit that the apprentice, bound to service for a season, is a slave during that season, we cannot justly allege, that, by this provision of the Constitution, the negro, held to service or labor for life, is recognized as a slave.

A mere technical view of a great political question is usually a contracted one, of little practical value, and unbecoming a statesman. "The letter killeth, but the spirit giveth life." Yet we must not mistake for technicality a careful interpretation, distinctly warranted by the terms employed, of a public instrument. Every public instrument, by which the governed delegate powers to those who govern, should be strictly construed.

I am not arguing, that the men who framed the Constitution did not regard negroes held to service or labor as slaves. I am not arguing that temporary claims, to the number (let us suppose) of forty or fifty thousand, may, for a moment, compare in importance with life-long claims, to the number of four millions; or that it is safe or proper to legislate in regard to the latter, involving as they do vast industrial interests, with as light consideration as might suffice in enacting regulations for the former. I am not arguing that a political element, which has gradually assumed proportions so gigantic as has American Slavery, can, with any safety or propriety, be dealt with, except after the gravest deliberation and the most sedulous examination, in advance, of every step we propose to take. I allege nothing of all this.

What I assert is, that neither the number of slaves nor the magnitude of the interests involved can properly influence the judgment in determining the just construction of a clause in the Constitution, or properly set aside a fair deduction from the wording of that clause as to its true spirit and intent. What I assert is, that the framers of the Constitution, in studiously avoiding the employment of the word slave, undeniably abstained from admitting into that instrument anything which the use of that word might have implied. Therefore the Constitution does not recognize the ownership of one human being by another. In it we seek in vain any foundation for the doctrine declared by Chief-Justice Taney, that persons held to service or labor for life are articles of property or merchandise.

In one restricted sense, and only in one, is slavery recognized by the Constitution of the United States: as a system under which one man may have a legal claim to the involuntary labor of another.

Therefore the question, whether Congress has the constitutional right to emancipate slaves, resolves itself into this:—Can Congress constitutionally take private property for public use and destroy it, making just compensation therefor? And is there anything in the nature of the claim which a master has to the service or labor of an apprentice, or of a slave, which legally exempts that species of property from the general rule, if important considerations of public utility demand that such claims should be appropriated and cancelled by the Government?

This is the sole issue. Let us not complicate it by mixing it up with others. When we are discussing the expediency of emancipation and of measures proposed to effect it, it is proper to take into account not only State constitutions and State legislation, but also the popular conception of slavery under the loose phraseology of the day, and public sentiment, South as well as North, in connection with it. But when we are examining the purely legal question, whether, under the Constitution as it is and under the state of public affairs now existing, Congress has the power to enact emancipation, we must dismiss popular fallacies and prejudices, and confine ourselves to one task: namely, to decide, without reference to subordinate constitutions or legislative action, what the supreme law of the land—the Constitution of the United States—permits or forbids in the premises.

It will be admitted that Congress has the right (Amendments to Constitution, Article 5) to take private property, with just compensation made, for public use. And it will not be argued that a claim of one inhabitant of the United States to the service of another, whether for a term of years or for life, is property which has been constitutionally exempted from such appropriation. It is evident, that, if a claim to the service of a slave cannot constitutionally be so taken and cancelled, neither can the claim to the service of an apprentice.

On the other hand, it is to be conceded, as a feature of the utmost importance in this case, that, when property of any kind to a vast amount is thus appropriated, the considerations which influence its appropriation should correspond in magnitude to the extent of the interests at stake. When the taking and cancelling of certain claims practically involves the social condition of four millions of the inhabitants of the United States and the industrial and financial interests of six millions more, it is desirable that the considerations to justify so radical and far-reaching a change should be in the nature of imperative official duty rather than of speculative opinion or philosophical choice.

Let us proceed a step farther, and inquire if there be circumstances, and if so, what circumstances, under which it becomes the right and the duty of Congress to take and cancel the claims in question.

The controlling circumstances which bear upon this case may be thus briefly stated.

1. The Constitution (section 8) confers on Congress certain essential powers: as, to collect taxes, without which no government can be supported.

2. The Constitution (same section) authorizes Congress to "make all laws that shall be necessary and proper for carrying into execution" these powers.

3. If Congress fail to carry into execution these powers, the Government is set at nought, and anarchy ensues.

4. An insurrection, extending over eleven of the States comprising the Union, now prevails.

5. Because of that insurrection, the essential powers granted to Congress by the Constitution cannot be carried into execution in these eleven States.

6. Because of the resistance offered by these insurrectionary States to constitutional powers, it becomes the duty of Congress to pass all laws that are necessary and proper to enforce these powers.

All this will be conceded; but a question remains. Who is to judge what laws are necessary and proper to carry into execution the powers, expressly granted by the Constitution, which are thus obstructed and defeated?

This question has been determined by the highest legal tribunal of the United States, speaking by the mouth of one who will be acknowledged to have been her most distinguished presiding officer.

In the well-known case of McCulloch against the State of Maryland,[8 - February term, 1819. 4 "Wheaton's Rep., 316. Unwilling here to multiply words, I pray reference to the decision itself.] Chief-Justice Marshall delivered the decision of the Supreme Court; and by that decision the following principles were established:—

1. The construction of the words "necessary and proper" in the above connection. The Chief-Justice says,—

"The term 'necessary' does not import an absolute physical necessity, so strong that one thing to which another may be termed necessary cannot exist without that other."

2. As to the degree of the necessity which renders constitutional a law framed to carry a constitutional power into execution, the rule by this decision is,—

"If a certain means to carry into effect any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance."

3. But still more explicitly is the question answered, who is to be the judge of the appropriateness and necessity of the means to be employed, thus:—

"The Government which has a right to do an act, and has imposed upon it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means."

Thus, then, the matter stands. The powers to lay and collect taxes, to exercise authority over forts and arsenals of the United States, to suppress insurrection, and various others equally essential, are expressly given by the Constitution to Congress. It is the right and duty of Congress to carry these powers into effect. In case of obstruction or defeat of existing laws framed to that intent, it is the right and duty of Congress to select such means and pass such additional laws as may be necessary and proper to overcome such obstruction and enforce obedience to such laws. In the selection of the means to effect this constitutional object, Congress is the sole judge of their propriety or necessity. These means must not be prohibited by the Constitution; but whether they are the most prudent or the most effectual means, or in what degree they are necessary, are matters over which the Supreme Court has no jurisdiction. As Chief-Justice Marshall has elsewhere in this decision expressed it, for the Supreme Court to undertake to inquire into the degree of their necessity "would be to pass the line which circumscribes the judicial department and to tread on legislative ground."

There must, of course, be congruity or relevancy between the power to be enforced and the means proposed to enforce it. While Congress is to judge the degree of necessity or propriety of these means, they must not be such as to be devoid of obvious connection with the object to be attained.

In this case, the object to be attained is the enforcement, in the insurrectionary States, of laws without which no government can exist, and the suppression in these States of an insurrection of which the object is the dismemberment of the Union.

But these laws are resisted, and this insurrection prevails, in those States, and in those States only, in which the life-long claims to the service or labor of persons of African descent are held under State laws. In States where slaves are comparatively few, as in Delaware, Maryland, Missouri, disaffection only prevails; while in States where the number of slaves approaches or exceeds that of whites, as in South Carolina, Alabama, Georgia, insurrection against lawful authority is flagrant and outspoken: the insurrectionary acts of these States being avowedly based on the allegation that Slavery is not safe under the present constitutionally elected President, and that its permanent preservation can be insured by the disruption of the national unity alone.[9 - The Secession Ordinance passed the Convention of South Carolina December 20, 1860. The next day, December 21, the Convention adopted the "Declaration of Causes" which led to that Secession. This document declares, as to the non-slaveholding States, that they have "denounced as sinful the institution of Slavery"; that they have "united in the election of a man to the high office of President of the United States whose opinions and purposes are hostile to Slavery," and who declares that "the public mind must rest in the belief that Slavery is in the course of ultimate extinction." And it winds up with this assertion:—"All hope of remedy is rendered vain by the fact that the public opinion of the North has invested a great political error with the sanctions of a more erroneous religious belief."These, first put forth by South Carolina, afterwards indorsed by each seceding State, are the causes officially declared to have produced, and which are held to justify, the present insurrection.]

All this is matter of history. And there would be as much propriety in denying the connection between the sun and the light of day, as that between Slavery and the Rebellion.

There is a question upon which men differ: namely, whether emancipation is the most prudent or the most effectual means to enforce violated law and suppress the insurrectionary movement.