Constitutionality of Slavery
By Nathaniel Peabody Rogers
This essay, from Herald of Freedom of September 8, 1838 anticipates the argument of Lysander Spooner's polemical/jurisprudential masterpiece The Unconstitutionality of Slavery of 1845, including Spooner's basic approach to constitutional interpretation. It's evidently a response to an anti-abolitionist editorial in the Keene (NH) Sentinel by one Mr. Prentiss. Rogers eventually became an absolute non-resistant, but here, rather remarkably, he argues that slaves themselves are within their rights, are in fact under an absolute obligation, to revolt, and he hints strongly that slaveholders ought to be hanged.
The second "unprovided-for difficulty" of the Keene Sentinel, in the way of the anti-slavery movement is, that "slaves are property." We deny that they are property, or that the can be made so. We will not argue this, for it is self-evident. A man cannot be a subject of human ownership; neither can he be the owner of humanity. There is a clear and eternal incompetency on both sides, - on the one to own man, on the other to be owned by man. A man cannot alienate his right to liberty and to himself, - still less can it be taken from him. He cannot part with his duty to be free - his obligation to liberty, any more than his right. He is under obligation to God and humanity and his own immortality, to retain his manhood and exercise it. He cannot become the property of another, any more than he can part with his human nature. It would be utterly repugnant to all the purposes of his creation. He is bound to perform a part, which is totally incompatible with his being owned by any body but himself; which requires that he keep himself free. He can't be property, any more than he can be a horse, or a literal ass. We commend our brethren of the Sentinel to the eighth Psalm, as a divine authority touching the nature and destination of man. He can't be property - he can't be appropriated. His mighty nature cannot be coped by the grasp of ownership. Can the Messrs. Sentinel be appropriated? We put it sternly to them, in behalf of their, and our own, and the slave's common nature, - for we feel that it is all outraged by their terrible allegation. Can the editors of the Sentinel become property? the goods and chattels, rights and hereditaments of an owner? If they can't, no man can. If any man can, they can. Can the Hon. Mr. Prentiss, with all his interesting qualities and relations, by any diabolical jugglery, be converted into a slave, so as to belong to one of his fallen, depraved fellow-man? Can he suppose the idea? Is he susceptible of this transmutation? He is, if any body is. Can he be transferred, by virtue of a few cries and raps of a glib-tongued auctioneer? Could a pedler sell him, from his tin cart? Could he knock him off, bag and baggage, to the boldest bidder? Let us try it. No disrespect to our esteemed senior. - We test his allegation, that a man is property. If one man can be, any man can - himself, or his stately townsman, Major-General Wilson, who would most oddly become the auction platform. If a man can be property, he can be sold. If any man can be, every man can - Mr. Prentiss, Gen. Wilson, Rev. Mr. Barstow - every man. Let us try to vendue the Sentinel. Advertise him, if you please, in the Keene paper. On the day, produce him - bring him on - let his personal symmetries be examined and descanted upon - his sacred person handled by the sacrilegious man-jockey, - let him be ordered to shift positions and assume attitudes, and display to the callous multitude his form and proportions - his points, as the horse-jockey would say. How would all this comport with the high sense of personal honor, wont to be entertained by the Sentinel. How would he not encounter a thousand deaths rather than submit to it? How his proud spirit, instinct with manhood, would burst and soar away from the scene! Who bids? an able-bodied, capable, fine, healthy, contented BOY, about fifty - sound wind and limb - sold positively for no fault - a field hand - come of real stock, - faithful, can trust him with gold untold - will nobody start him? - shall we have a bid? - will nobody bid for the boy? Now we demand of our respected brother, whose honor is as sacred in our regard as in his own, what he thinks of the chattelism of a slave, - for we indignantly lay it down as an immovable principle that the Hon. John Prentiss is as legitimate a subject of property and of sale, as any the lowest of his race.
We dispose of the position that "slaves are property," by utterly and indignantly denying the possibility of it. We will rescue our brethren of the Sentinel from the imputation of this murderous idea, by erasing the semicolon after "property," and making but one sentence of the second "difficulty," turning it into an opinion that "slaves are property by the constitution and the laws;" throwing the infamy on to the old framers of the constitution, and all of us who have lived under it, with power to amend or nullify it. It would sink the whole of us. Constitution and laws! Is the Sentinel of the opinion that a constitution could be framed by men, or by existences in the shape of men, that, instead of protecting human liberty and rights, should annihilate them? A constitution to enslave men! What would you say of a British constitution, that enslaved a British subject? Would you not scout the idea of it - of the British possibility of it? and can it be done here, and was it done here by revolutionary sages, who could not brook the restraints of British liberty? A constitution, that should provide for the enslavement of a man, would be a legal abortion. The bare engrossing of it would nullify it. It would perish by spontaneous annulment and nullification. It could not survive its ordination - nor could its infamous framers. We deny that an enslaved man is property by the constitution, and we might deny that any man can be enslaved under our constitution, and consequently, that he could be chattelized, if a slave were admitted to be property. Things may be appropriated - persons may not. They are self-evidently not susceptible of appropriation or ownership. By the constitution every body is spoken of as a person - no mention is made of human things. If a slave is alluded to, in that instrument, as a possible existence in point of fact, it is under the name of "person." "Three fifths of all other PERSONS" - "migration or importation of persons" - "no person held to service." These are the only instances in which the allusion is made to slaves, - and it no more, in those allusions, sanctions enslaving, than it does "piracies and felonies on the high seas," which it also explicitly recognizes, as they say of slavery. So it says "person," where it solemnly asserts that "no person can be deprived of liberty or property, but by due process of law." This clause prohibits the slightest approaches to enslaving, or holding in slavery, which is continued enslaving. No person's property can be taken from him; not his life even; infinitely less his Liberty, without due legal process. It is idle to say, that the framers of the constitution, or those who adopted it and acted under it, did not mean to save the colored man from slavery, by this clause. In law they are to be held to mean so, because they said so. The intent of the framers is now to be gathered from what they said in the instrument itself - not their colloquies at the time or before or after - but what they put down in imperishable black and white. It is what they inscribed on the parchment for all time, that they legally intended, and there we are to go to get their intent. If the words are obscure and ambiguous, we may gather their intent by aid of concomitant circumstances, &c. But there is no ambiguity here. The clearest words and best understood and most trimly defined of any we have, here set forth the essential doctrine, (without which a community of thieves and pirates could scarcely be kept together,) that life, liberty, and property are sacred. Enslave man and leave him these three, and you may do it, maugre this clause of the constitution. However, you must leave him, by virtue of other clauses, a few other incidentals, such as compulsory process for calling in all witnesses for him, of whatever color; the inviolate right to be secure in person, house, papers and effects, against unreasonable searches and seizures; right of trial by jury in all cases over twenty dollars' value; the free exercise of religion, of speech, of the press, of peaceable assembly and petition; the civil rights of republican government, which is guarantied to him in every state in this Union; the privileges and immunities of citizens in every state; in short you must allow him a string of franchises, enumerated accidentally in that part of the old compact, called the preamble, viz., justice, domestic tranquility, common defence, general welfare, and, finally, the blessings of liberty to himself and to his posterity; - moreover you may add, in repetition, - for securing these breath-of-life sort of rights, people run a little into superfluity of words - you may add the unsuspendible privilege of habeas corpus - the old writ of liberty; - and perfect exemption from all attainder, or enslaving a man's children on his account. We will mention one more- this is the uninfringible right to keep and bear arms. All these and many other rights and immunities, "too numerous to be mentioned," are secured to him by adamantine provisions in the constitution, and if you can chattelize him under them, so that Austin Woolfolk can trade in him, at your capital, Or Wade Hamton or the American Board, can buy him and use him up in their service, or Doctor Ezra Styles Ely speculate in his soul and body, then your doctrine, Messrs. Sentinel, is sound, that he is recognized as property by the constitution.
We claim some exceptions, however, in case we cannot overthrow slavery in the slave states, by force of the national constitution. We cannot allow you to enslave any body in old Virginia. Look at her law paramount in our caption, declaring the BIRTHRIGHT, INALIENABLE LIBERTY OF ALL MEN. In Maryland the right is constitutionally set forth a little stronger. You must not enslave a man in Maryland, - and we can't allow you to lay a finger on his liberties in the district of Columbia, because the constitutions of Virginia and Maryland are still paramount law there, by congressional adoption, at the acceptance of the cessions. And if he runs away from the district or a territory, or either of those two states, we can't allow you to arrest him and send him back.
We ask our legal friends, who think lightly of this "fanaticism," to look into this constitutional and legal mater of slaveholding. We would like especially, that some of the neighbors of the Sentinel would give some exposition, during the coming convention, of the lawfulness of enslaving people in this country. We ask the Keene lawyers how this is. We want "the opinion of the court."
For ourselves we venture the opinion, in light of what glimmerings of law scintillate about our vision, that holding a man in slavery is a violation of the law of this land, and of every part of it, not excepting our gory-fingered sister Arkansas, or our carnage-dripping sister Alabama, the haunt of christian enterprise from New England and the worn-out slave states in the north. A constitution that can avail to protect republican liberty to a single member of this community, inviolably secures it to every man, and condemns and prohibits slavery. It cannot otherwise be. Slavery is a mere matter of fact - in the face of the constitution - in the face of each state constitution - in the face of every court of justice which soundly administers the law of any state - in face of every thing, but a tyrant public sentiment, and a diabolical American practice.
The enslaved of the country are as much entitled to their liberty as any of us, by the law as it is. They have a right to throw off all violation of it by force, if they cannot otherwise. Nay, it is their duty to do so, if they can, - for it is not injury merely, that they are submitting to - not wrongs. They are rendered incapable of suffering injury - incompetent to endure wrong. The accursed system, that preys upon them, makes things of them - exterminates their very natures. This they may not submit to. They ought to prevent it, at every expense. They ought to resist it, as the Christian should the devil, for it wars upon the nature of man, and devours his immortality. If they could heave off the system by an instantaneous and universal effort, they ought to do it. Individually we wish they could do it, and that they would do it. We may be wrong in this opinion - but we entertain it. If our white brethren at the South were slaves, we should wish them instantaneous deliverance by insurrection, if this would bring it to them. We wish our colored brethren the same. We do not value the bodily lives of the present white generation there a straw, compared to the horrible thraldom, in which they hold the colored people, and we value their lives as highly as we do the colored people's. But insurrection can't effect it. It must be done by the abolitionists. They must annihilate the system by force of their principles, and as fast as possible. And they must increase their speed. Men will have to groan and pant in absolute brutality, with their high and eternal natures bound down and strangled amid the folds of this enslaving devil, until we throw it off. To the work then, and Heaven abandon the tardy! If you wish to save your white brethren and yourselves, we commend you to this work, in sharp earnest. We tell you, once for all, there is no tome to be lost!
There is no end to the theme - there must be to this article. We deny the truth and existence of the Sentinel's two difficulties, and if, in fact, they both existed, our movement "provides for them." The people collectively have the power to declare slavery a crime in the slave states. Congress has the power to do what amounts to the same thing - by direct action. They can declare it criminal in the capital, and how long would it be esteemed innocent elsewhere? They can punish enslaving in the district, and the man-traffic between the states as piracy. Lex talionis would enslave the perpetrators - but that would be devilish, and ought not to be inflicted. But if hanging is lawful in any case, it is in this.
If the people collectively and Congress have no legal power over the slavery of the slave states, abolitionists have the power, ample and adequate, and they will "provide for the difficulty."
The constitution and the laws do not recognize the slaves as property. We call for the proof. The Sentinel avers it. Let them point us to the spot where. And could they do this, the abolitionists have the power (consult rule of three for the time it will take) to change and redeem both the constitution and the laws and transmute this property back again to humanity.