00-00-01-1837-10-18 Newart, Alvan: An Constitutional Argument on the Subject of Slavery, The Friend of Man, Vol II, No 18 (1837)

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Reprinted from The Friend ofMan, Vol II(Utica: October 18, 1837), No 18

A Constitutional Argument on the Subject of Slavery1by Alvan Stewart

Alvan Stewart (1790-1849). Born in Soutll Granville, New York.Spent his boyhood and youth in Vermont. Attended the universityof that state. Taught school and studied law in early manhood.Moved to Utica, New York about 1832.In October, 1835, in Utica, Stewart formed the New York AntiSlavery Society which he served for many years as president andformidable leader. One of the first 0/ the abolitionists to advocateindependent political action, he helped organize the Liberty Party,presided at its first convention, and ran for Governor of New Yorkas its nominee. His distinctive contribution to the antislavery movement lay in the field of constitutional argument. He was the /irstto insist that Congress had power under the Constitution to abolishslavery in the slave states. He thus confronted' well-nigh universally accepted views 0/ the nature 0/ the federal sy.stem and c o n ~stitutional grants 0/ power and the explicit concession of the constitution of the American Anti-Slavery Society: "We fully. andunanimously recognize sovereignty of each state to legislate exclusivelY on the subject of slavery which is tolerated within its ,limits;we consider that Congress, under the present national compact. hasno right to interfere with any of the slave states in relation to this'!2omentous subject." Stewart maintained ,that the Constitution andthe Declaration of Independence were fundamentally antislavery'documents and that Congress should and could carry out theirgeneral mandate through an ,exercise of the war and treaty powers,through a discharge of the duty to guarantee a, republican form ofgovernment to the" several states, and through the, execution ofthe command of the Fifth AmeJ:ldment that no person be deprivedof life. liberty, or property, ,without due .process of law. The: 1{{5tof ~ h ( ! s e arguments, was the most original and the one most persistently espoused by Stewart. Its earliest and most striking /ormu-1 Reprinted from The Friend 01 Man, Vol. ]I (Utica: October 18. 1837) . No. 18. 1

Reprinted from The Friend of Man, Vol II

(Utica: October 18, 1837), No 18


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lation appeared ilL the paper, reprinted helow, prepared for preS 4entation to the New York Anti-Slavery Society in September, 1837,a m ~ ' published in The Friend of Man (Utica, New York) inOctober of that year.

A CONSTITOTIONAL ARGUMENT. on the subject of SLAVERY, delivered before the New-York State Anti-Slavery Convention, at anAnniversary Meeting of the New-York State Anti-Slavery Sodety,20th September, 1837. by ALVAN STEWART, Esq., of Utica.The argument appearing to the Convention to open a new andmost higWy important view, on the subject of slavery, the Convention, in consonance with the wishes of Mr. Stewart, withoutexpressing an opinion as to the correctnesS of the argument, ordered the same to be referred to the meeting of the Parent Society,at its annivrsary in May next, for further consideration, and thatin the mean time, the Executive Committee cause the same to bepublished, so that it might pass through the ordeal of consideration and discussion, before the same should be permanentlyadopted, if found correct.

The ArgumentCongress, by the power conferred on it by the Constitution,possesses the entire and absolute right to abolish slavery in everystate and territory in the Union. This could be effected by theenactment of a declaration law, in pursuance of, and in conformityto the 5th Article of the amendments to the Constitution of theUnited States.-The latter part of this Article is almost an extract,

in words and spirit, from the Magna Charta-the great bill ofEngland's liberties.The Jatter part of the 5th article of the amendments to the Constitution of the United States says, Nor shall any person "be deprived of life, liberty. or property. without due process of law."Many other essential rights are secured in this same article, tothe citizen. as, that no person shall be subject, for the same offense,to be twice put in jeopardy of life or limb, and that no man shallbe compelled to be a witness against himself, in a criminal casejbut the most essential is the one which forbids ".ANy PERSONDEING DEPR(VED OF HIS LIFE, LIBERTY, OR PROPERTY, WITHOUT DUBPROCESS OF LAW."That Congress should possess the power to abolish slavery in

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this nation, without limitation as to place, may be startling tosome, as a new proposition, especially as it has been admitted inthe constitution of the A m ~ r i c a n Anti-Slavery Society, that Cangress did not possess the pOWer over tho slave states.It is humbly submitted, that this admission was made by theParent Anti-Slavery Society, in its constitution, and by many con

stitutions of local societies since, as imitators of the parent, with-out bestowing upon the subject the amount of investigation whichso solemn a subject demanded. That constitution, though framedby some of the best heads and hearts in this land, yet it must beremembered that it was made in the infancy of this mighty reformation, when the great questions which have since. been so ablydiscussed, had hardly been grazed by the inquirers after truth.But after all, unless slavery has corrupted our language, so faras to make it "palter in a double sense, and while it keeps theword of promise to the ear. it is meant to break it to the hope";unless it has changed the primitive meaning, and cut out the veryheart and soul of words employed and understood as having c e r ~tain and fixed ideas, which the words represented from the daYs ofKing John in the Vale of Runney Meade. to the day of the finaladoption of the Federal. Constitution; then can we have no doubtthat every human being in this Union, black or white, bond orfree, has invaluable blessings secured to him by the 5th article ofthe amendments to the Constitution. The sturdy barons and wisemen of England, compelled a volatile King to subscribe MagnaCharta 500 years ago, containing the words of our article; andfrom that daY to this every Englishman and American has claimedthe invaluable principle. "that no person should be deprived of hislife, liberty, or property, without due process of law," as a partof his inheritance and birthright.The first inquiry we shall institute, is to know what is meant bythe words, "without due process of law." For it is important toknow what that "due process of law" can be, which has power todeprive a man of his life, liberty, or property. And on this subject,it is believed no lawyer in this country or England, who is worthyof the appellation, will deny that the true and only meaning of thephrase, "due process of law," is an indictment or presentment bya grand jury, of not less than twelve, nor more than t w e n t y ~ t h r e emen; a trial by a petit jury of twelve men, and a judgment p r o ~nounced on the finding of the jury, by a COllrt.Judge Story, in his commentaries upon the Constitution of theUnited States; page 663, speaking of this sentence of this article

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of the Constitution. says: "that the other part of the clau'se is butan enlargement of the language of Magna Charta-'nec supercum ibimus, nee super cum mittimus. nisi per legale jUdiciumpat;ium suorum vel per legem terra/-neither will we pass uponhim, or condemn him. but by the lawful judgment of his peers.or by the law of the land. Lord Coke says that these latter words.'per legem terra; (by the law of the land,) mean by 'due processof law;" that is, without due presentment or indictment. and beingbrought in to answer thereto, 'by due process of law.' So that thisclause. in effect, affirms the right of trial according to process andproceedings of common law."

In fact, this constitutional provision is nothing but one of thoseinvaluable principles. priceless in character. drawn from the vastquarry of the common law. The framers of the Constitution. fearing and knowing that a different rule or principle prevailed in someof the states. in relation to certain unfortunate persons, knownunder the name of slaves, determined to incorporate this branchof Magna Charta into the Constitution. as a fundamental law ofthe confederacy, believing that 500 years of eventful experienceproved its soundness, as a chief corner-stone in the edifice of constitutional liberty. Here it will remain for ever canonized, not as anew principle, but as an old one in a new place.

I t must not be forgotten, that before the Revolution which sep-.arated us from the British empire. no provision was made. as between the Colonies of this country, for the surrender of fugitiveslaves. Neither was there any thing said on the subject of slaves,in the articles of confederation, which lasted twelve years. or asto the restoration of fugitives. Therefore. so far as the northernstates were concerned, in the adoption of the Constitution, theyassumed a new and peculiar position in relation to slavery, beforethe world. The North having agreed to share equal legislativepower with the South. in relation to the District of Columbia, andthe territories where slaves might be; and having obligated t h e m ~ .selves, though free states. to surrender fugitive slaves; being thusunder the double obligation of acting in disobedience to the plainand unequivocal dictates of humanity, in agreeing to surrenderthe fugitive slave. or rather to kidnap him for the benefit of theslaveholder; and if this slave should raise the standard of insurrection, in defense of the most ennobling and holy of human principles (the love of liberty), the man of the North further agreed tosmother all respect for the nobility of the act, and. in defiance ofhis conscience. go and pour his blood out in suppression of that

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insurrection: all of these engagements on the part of the man ofthe North, gave him full power to insist on what forms should begone through with. to constitute and make the man a slave. whomhe was bound to kidnap. and restore to his master. and kiII on thefield of battle for the crime of loving and asserting his liberty.The men of the free states being made partakers in the crime ofslavery. out of courtesy. might firmly. as they truly did. insist thatthe Constitution should contain the only mould in which slavesshould be run. and i f they were not made in that mould, with allits forms, they could not exist.That constitutional mould was in these words: "Nor shall anyperson be deprived of his life. liberty, or property, without dueprocess of law."We must bring to the mind, in carrying out the "true theory ofthe Federal Constitution. at its formation. that the whole sovereignpeople of the thirteen states, in legal contemplation. were present,acting in one vast assemblage or body. where every thing wasunderstood and discussed. bearing on the great subject under consideration.

In theory. there was one vast assembly of the American peoplein the convention, constituting the primary elements of society,in its original sovereignty, agreeing upon the principles for thefederal government and union; and it would require no greatstretch of the imagination. to suppose that after providing for thegeneral powers of government. in peace and war, in relation toforeign nations, the states, and Indian tribes, that they should havebeen particularly anxious to erect a strong citadel for the p r o t e c ~tion of man, as man. from the tyranny of his fellow beings.

We may suppose that from one part of the Union. a speakershould rise and say, that in the section of country from which hecame, owing to the late troublous times of the revolutionary war,in which committees of safety had from necessity assumf!:d supremepower over individuals, that even the same practice was continued,without any of the legal forms known and observed by the common law, for the protection of life or the conviction of the guilty;and that men had been deprived of life by lynch law, "without dueprocess of law,''' and he therefore claimed that no man, henceforth,should be deprived of life, except by due process of law; whileanother arises from the North, and states. that slavery will neverbe assumed as a part of the burden and crime of the North, unlessit is identified by great constitutional ear-marks, by infallible tests,so that the _fugitive may be known, and all who are claimed as

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such, may be distinguished as those who have been deprived ofliberty. What I mean, says the speaker, is, that each man, woman,and, child, claimed as slaves, before they shall be deprived ofliberty, shaU always have an opportunity, as ample as the be-nignity of the common law, to vindicate their freedom, so far asthe forms of a trial are concerned; and they shall not be deprivedof their"liberty and become slaves, except by the indictment of agrand jury. and trial by a petit jury, and the judgment of a courtthereon, that the person is a slave, and the property of A. Andon this trial, let the person claimed to be a slave, have the benefitof counsel, appointed by the court, if he is unable to employ one;let him plead he is not a slave, and let the burden of proof lie uponhim who claims to be proprietor of the sUPPosed slave. Let theperson claimed as a slave have the benefit of compulsory process,to compel the attendance of those by whom his freedom may bemaintained.But the petit jury agree on oath, unanimollsly, that he is a slave,let the judgment of the court be pronounced, that he is deprivedof bis liberty, "by due process of law:' and let there be a recordmade up, stating these facts as an enduring memorial, and filedwith the clerk of the court, as a perpetual testimonial that thisperson has been deprived of his liberty according to the constitu-tion. The man of the South rises in convention, and says, that manypersons are claimed as slaves who are Dot, and others who are,who think they are not. This mode of trial will settle the question,so that it may not be a matter of unending dispute, and we of theSouth are willing to enter the confederacy on these terms, that"no person shall be deprived of life, liberty, or property, withoutdue process of law."

Thus the great and difficult question was arranged, in the forma-tion of the Constitution. Let it not be said that the master had,antecedent to the Constitution, vested rights of property in theslave; for, granting that proposition, still the master, for the greatersecurity from his slaves' insurrections and fiigbts, agreed upon anew criterion, upon a new definition of slavery, and upon a slaverywhich was first proven by the course of a legal trial, of the mostimportant character.Another important question arises, which is, i f the Constitutionestablished the terms on which slavery might exist; and if thoseterms have not been complied with, is it not proof positive, atleast a constitutional presumption, that there are no persons inthis land, who could legally be proven to be slaves, provided the

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great constitutional formula is complied with, as this was the onlyevidence of slavery recognized by the Constitution, and even thathas not been complied with in a single case in 48 years. The inMdictment, trial, and judgment against a person as a slave, is thecommission by which the master was authorized to exercise thosepowers over the slave, supposed to belong to him as master.Without this commission, this constitutional authority, growing outof an indictment, trial, and judgment against the slave, the act ofthe master, in exercising dominion over the slave, is as unconstitutional as for a man, without commission, election, or appointment, to assume the duties of sheriff, and hang a man, untried,but suspected of murder. It would be murder in the assumed sheriff,bec31.1se he had no commission, no matter how guilty the individual who was executed. The inql.liry is, had the sheriff a commission, -had he authority to hang?The only difference between a freeman and a slave, under theConstitution, was that the freeman was deprived of his liberty bydue process of law, for crime, and the slave was deprived of hisliberty by due process of law, simply because he was a slave; andthe Constitution gave him an opportunity, once in his life, to vindicate his freedom. Indictment, trial, and judgment, are the modesby which, under the Constitution, the white man and black manboth lose their liberty, and by no other process can they constitutionally be deprived of i t -one for crime, the other from mis-fortune.Again in the 3d clause in the 2nd section of the 4th article of theConstitution, which relates in part to fugitive slaves, the peoplehave in their sovereign capacity, legislated on this subject, sayingthat "no person held to service or labor. in one state under thelaws thereof, escaping-into another, shall in consequence of anylaws or regulations therein, be discharged from such service, orlabor, but shall be delivered up on claim of the party to whomsuch service, or labor, may be due."When the man of South Carolina, pursuing his fugitive slave toNew Hampshire, comes and demands his slave to be delivered up;what will the magistrate of the granite state, say to the slaveholderof the Palmetto? I acknowledge I am bound to make OLlt an orderand deliver up tbis fugitive to you, as a part of the grand compactof the Constitution, provided the fugitive has been deprived ofhis "liberty by due process of law." For that is the grand principleon which the men of the free states consented that slavery mightexist, and only in those cases, where the person was deprived of

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his liberty, by due process of law, by indictment, trial, and jUdg-ment against him. Now, says the magistrate, I know slavery, in nOfonn or shape under the Constitution, except where the slave haslostrhis liberty, by due process of law, and that was the tenure bywhich slaves were to be holden, in the U.S. of America, and byno other, and so the North and the South, East and West haveagreed in the constitution, and if you call produce me a record,or the exemplification of a record, showlng to me, that a court ofcompetent jurisdiction, proceeding upOn the principles of the com-mon law, by the indictment or presentment of a grand jury ofnot less than 12 or more than 23 men who have found that indict-ment, or made that presentment on oath, and that 12 men on theiroath as a jury have said on the trial of the fugitive, that he was aslave, and a court has pronounced judgment thereon, then I willmake an order for you to take the person as your fugitive slave,othe(wise not. No matter what evidence you produce 10 show t h ~ tyou own the slave, i f your title be unbroken through five genera-tions of men, and if you have a bill of sale from him who claimedthe fugitive's mother and grandmother, that will not answer. Theword "person" is used for the fugitive slave, in the 3d clause ofthe 2d section of the 4th article-"No person held to service" &c.The word "person" here means a slave, and in other parts of theConstitution the word "persons" is used for slaves, as in the 3dclause of the 2nd section of the first article, speaking of those whoshall constitute the basis of representation in Congress, after in-clUding the whole number of free perSOllS and those bound to laborexcluding Indians not taxed, and "three fifths of all other person9'-b y which slaves are intended, in the last part of the sentence.The slave 'is designated under the appellation of "persons" infixing the basis of representation, also the word "person" is em-ployed to denote the fugitive slave in tile 2d section of the 4tharticle, and the words in the 5th artide of amendments of theConstitution, "nor shall any person be deprived of life, liberty orproperty, without due process of law," must necessarily includeslaves. For if it did not, after having previously twice used theword ''person'' where It meant slaves, if it did not intend toembrace the slave, there would have been an exception in relationto the slave. The words of the Constitution have no exception likethe following, "nor shall any person (except slaves) be deprivedof their life, liberty and property without due process of law.""Any person," is equivalent to every bodY.The word "person" when used under the terms "three fifths of

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all other persons" is used to designate slaves exclusively, in thesense it is there used, in the 1st article."No person held to service or labor in One state under the lawsthereof escaping" &c. 2d section, 4th article.In this article of the Constitution the words ' 'No person" mean,not only slaves, but white apprentices bound to serve their masters

for a limited time and the sons or daughters of a parent, beingminors, and a man's wife, escaping from the person, to whomtheir service is due, to another state may be delivered up as wellas the slave &C. That the words "no person" here, may mean thefugitive slave, the bound free apprentice, the wife, the son, daugh-ter, it is believed none will dispute."Every person," in the 5th article of the amendments of theConstitution covers the whole ground of our humanity, and meansevery body, without exception, or in other words, it is as plain asthough it had said ''no human being" now living. In the UnitedStates, or who may hereafter live in said states, shall be deprivedof his life, liberty, or property without an indictment by a grandjury, a trial by a petit jury, and the judgment of a court thereon.Before advancing to the other branch of this argument, we maybe permitted to assume, at this stage of our reasoning, that thereis not a slave at this moment, in the United States upon the termsmutually agreed upon, by the people of this country, at the forma-tion of the Constitution. I f this be true, any judge in the UnitedStates, who is clothed with sufficient authority, to grant a writ ofHabeas Corpus, and decide upon a return made to such a writ;on the master and slave being brought before said judge, to inquireby what authority, he the master held the slave; if the mastercould Dot produce a record of conviction, by which the particularslave had been deprived of his liberty, by indictment, trial, andjudgment at a court, the judge would be obliged under the oathwhich he must have taken, to obey the Constitution of his country,to discharge the slave and give him his full liberty.Upon the same principle, no judge, magistrate, or court inthe free or slave states, is authorized to make an order to deliverup a fugitive slave, unless the master produces a record of theconviction of the slave, showing that he has been deprived of hisliberty by an indictment, trial, and judgment of a court, or by"due process of law."-Let it always be borne in mind that theConstitution, being a supreme act of the sovereign people, actingwith the oneness of a consolidated empire, and not as distinctsovereignties, in its formation, that it becomes paramount to the

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constitution, laws or usages of any single state,' wb.enever andwherever they conflict. So fully sensible that the Constitution ofthe United States would be but a rope of sand, unless the same,and tl\e laws made in pursuance of it, by the Congress, were paramount to all state constitutions and legislation, that the Americanpeople did not choose to leave it as a matter of inference, butincorporated the same into the Constitution of the United States,''Congress shall have power to make all laws which shall benecessary and proper for carrying into execution the foregoingpowers, and all other powers vested by this Constitution in theGovernment, of the United States, or in any department or officerthereof," 18th clause of the 8th section of the 1st article.But more particularly the second section of the 6th article ofthe Constitution of the United States establishes the proposition,

which is, "this Constitution and the Laws of the United States,which shall be made in pursuance thereof, and all treaties made,or which shall be made, under the authority of the United States,shall be tbe supreme law of the land; and the judges in every stateshall be bound thereby, any thing (n the ConstitutIon or law ofthe state to the contrary notwithstanding:'

I t seems to have been a matter of very great anxiety among thepoliticians of the slave states, to satisfy the American people thatslavery was an institution, recognized in the Constitution of theUnited States.To be sure they have had great disagreement amongst themselves as to the article or section of that instrument in which thistremendous power of man over man was lodged, some finding itin one article, and some in another; but they have all agreed itdoes exist some where, in this revered instrument, Admitting that

the monster slavery is permitted to exist wtih limitations andrestrictions, in the Constitution, we contend that it can exist nootherwise, than as the Constitution has said i t shall exist, whichis that "110 person shall be deprived of his liberty, except by dueprocess of law.". Until this great constitutional pre-requisite has been compliedwith, no man in this nation can have a Constitutional deed ofanother's body, and the control of its powers. The slaveholder hasDever seen fit to comply wtib the great compact agreed on, in theConstitution, by which the power to bold a slave, was created.-But the slaveholder has assumed a jurisdiction over the slave,in the very face of the Constitution, and contrary to its solemninterdict, and high behest. The reason why these unasserted rightsof the slave have lain dormant and unexamined seems to have

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arisen from the utter inability of one under the bonds of slavery,to take the very first step, which is to appear in a court of law,to vindicate his right for and to himself. For in the slave states thebarbarous rule has become law by which every person in whomthere is African blood, is presumed to be a slave, till the contraryis made to appear.The colored man, instead of going into the temple of justice,with the charitable presumption in his favor, that he is a man,and a freeman, comes with a prima facie judgment against all hisinalienable rights. The laws of those states in which slavery exists,say, in defiance of the Constitution of the nation, that the coloredman is to be considered a slave, and his baving African blood in

his veins is made the test, instead of the one laid down by theUnited States 'Constitution; which is a record of conviction shOW-ing tbe individual a slave by a due process of law.-The Constitu-tion of the United States presumes the colored man a freemanwherever he is found in the confederacy. And that presumptioncan only be rebutted by the record of conviction showing that hehas been deprived of that liberty, by due process of law.The Constitution and laws of the slave states say the test forthe loss of liberty depends upon a man's blOOd, the curl of hishair, the distended nostrils, the thickness of his lips, or the dark-ness of his complexion. The Constitution of the United States saysit depends not on blood, ancestry, the country of origin, the shadeof complexion, the nostril or lip, but on a record of jUdgmentpronounced by a court on oath, by a petit 'or grand jury, on oath,and by evidence taken before these juries and court, on 9ath. Eachand every step taken in this moral demonstration and search fortruth, was to have been under that solemn appeal to the retribu-tions of the eternal judgment, for the truth of the testimony taken,as for the opinions formed on that evidence by the grand and petitjuries and court.Which of these tests ought to prevail we can entertain no doubtas long as the Constitution of the Confederacy is paramount inauthority, to all state constitutions, and laws made und'er them,Or judicial decisions of slave states made in hostility to theFederal Compact?But i t may be inquired, why has not the slave asserted his rightlong since? Ask the ox and horse of New York why they havenot exchanged their hard masters for the unbounded liberty ofthe wild ox and untamed horse of the vast prairies of the Westernwilderness?Man was not a slave justly, when made so by all the forms of

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OUr national Constitution. Rank injustice lies at the bottom of theprinciple, even when the slave had had the benefit of aU the formsprepared by that Constitution for his defense. But because theConstitution was wrong in making a man a slave, even by dueprocess of law, that is no reason for stripping him of the rightsand presumptions, which the Constitution has flung round him forhis defense.The practice has been for the lordlY slaveholder, or his agent,

in aU the pride of wealth, to pursue his fugitive, and on very slimproof before a magistrate, that the man had been in his servicesome time, or that he had bought him, or that he was born onhis plantation. Without pushing inquiries further, the magistratemakes an order and delivers the helpless fugitive to his aJledgedmaster.

The fugitive is taken from the State of New York to Alabama.Who is there in New York to carry up this decision of themagistrate to the Supreme Court of this State? The fugitive, whomight claim a title to his body as plainti1i', is gone, as well as themaster who should be the defendant, both out of this state. Howcould the Supreme Court obtain jurisdiction by way of reviewingthe magistrate's decision? Both parties are gone from the slale.But supposing some friend of humanity should, at his Own expense,have the magistrate's decision reviewed by the Supreme Court,and carry the cause there. and that court shOUld reverse [he judgment of the justice. What benefit can accrue to the slave?The Supreme Court of this state can issue no writ for deliverance beyond the bounds of New York. Consequently in the course

of 48 years, anUdst the thousands of fugitives, who have beensent into slavery from this state. no argument in the SupremeCourt, or the Court for the Correction of Errors, involving thegreat constitutional rights of the slave, has ever been consideredor debated. One or two cases have been before the Supreme Courtand Court- of ErrOrs OD i!\cidental points, involving an inquiry intothe rights of persons claimed as slaves. The Congress of the UnitedStates would not have conferred the apparently immense power,without the trial by jury, upon single judges, snd even singlemagistrates of moderate capacity with little learning in every townand Village in the United States, to decide so great a question. aswhecher one of our citizens was a freeman or slave, but upon thepresumption, that every slave in the nation at some period, hadbeen deprived of his liberty. within the meaning of the Constitution, by due process of law; and that the record of that conviction

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by a grand and petit jury, and judgment of a court, would alwaysbe produced, by the master or his agent, to the jury, or magistrate,as the very title deed, proving that the man had lost his liberty,by due process of law. This is the reason why the act of Congressmakes no provision ror a trial by jury, in case of a fugitive,presuming that the man had once had the full benefit of a jurytrial, or otherwise he couId not be called a slave.But after all. it may be asked, i f the Constitution has madeprovision that no person shall be deprived of his life or liberty,without due process of law, why may not Congress pass a decIaratory act, carrying into effect the spirit and intention of this articleof the Constitution?

"If there be any general principle which is inherent in the verydefinition of Government, and essential to every step of theprogress to be made by that of the United States, it is, that everypower vested in the Government, is in its nature sovereign, andincluded by the force of the term, a right to employ all the meansrequisite and forcibly applicable to the attainment of the end ofsuch power; unless they are excepted in the Constitution, or areimmoral, or are contrary to the essential objects of politicalsociety." So says JUdge Story.The Constitution having taken up, staked out and defined thegreat landmarks of personal liberty; and having placed each individual, or "person" of this Republic in a condition to enjoy thefull benefit of a Jury trial before a Court-proceeding upon theprinciples of the common law, before liberty can be taken away,can it be tolerated, that States and individuals of slave States bythe boldest tyranny, shall seize upon and defraud 2,500,000 ofAmerican citizens of their liberty, and convert them into abjectslaves, in the face of their own high and solemn constitutionalbarrier, which was made paramount to all State Constitutions,laws, usages, judicial or legislative? Congress would possess theundoubted right to say, that the constitution of the Union, hassettled the terms and conditions, on which a human being maybe made a slave, forbidding all other manners or modes. Thepeople of-the slave States have had 48 years, almost half a century,to avail themselves of the constitutional mode for perfecting theirsupposed title to the bodies of their fellow citizens.-But from thewantonness and absurdity peculiar to all such unnatural relationsas that of master and slave, the master has seized and held theslave, contrary to the Constitution, and without his constitutionaltitle deed. The masters have admitted their inability to prove their

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colored people slaves, as they have never done it. Almost twogenerations have gone down to the grave since the shape and formin which slavery should exist, without finding a human beingdeprived of his liberty, by due process of law, on the ground thathe is a slave. I t would be fair to infer that there were none.Therefore Congress would but obey the strongest dictates ofpatriotism in giving full play and action to the Constitution, byimparting the blessings contained within its mighty folds.Congress have full power therefore to pass a law abolishingslavery, in substance, in the following words:-"Whereas the People of the United States by the Constitutionordained that no person should be deprived of his liberty exceptby due process of law, by indictment by a grand jury and thejUdgment of a court: And whereas the People of the United States,who pretend to hold slaves by the laws of several States, havenever established their title to their alledged slaves by due processof law, during the forty-eight years, which have existed since themode of creating a slave was ordained by the sovereign people ofthese United States: Therefore be it enacted by the Senate andHouse of Representatives, in Congress assembled, that all personsin the United States, who were not deprived of their liberty andmade slaves by indictment by a grand jury, trial by a petit jury,and judgment of a court, previous to the first day of January1837, be and the same are hereby declared to be free persons, anyconstitution of any State or law thereOf, or usage judicial orlegislative in any State of this nation, to the contrary thereofnotwithstanding."

From the reasoning pursued in this paper, it appears manifestthat every fugitive slave, who has been delivered up, ought tohave had his liberty; that every order made for the delivery ofslaves to their supposed masters, have been made, without theevidence required by the Constitution.A further deduction seems legitimate from these premises, thatwe of the North are not bound to uphold slavery in any form, aswe have not the evidence agreed on by the Constitution, that thereis a slave in the United States.-AII presumptions are to be madein favor of liberty, until the Record evidence, by due process oflaw appears, by which the slave has been ~ e p r i v e d of libertyaccording to the Constitution of the United States.We are bound to do but one thing, which is to petition Congress,without ceasing, until Congress passes a declaratory act, in affirmance of the great principles of human liberty established in the

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5th article of the Amendments to the Constitution of the UnitedStates, by which every slave unconstitutionally deprived of hisliberty, may lift up his head and rejoice for the hour of his re-demption.I f it be true that Congress have entire power over the question

of slavery. and a right to put an end to the unconstitutionalslavery which now exists, is it not a matter of rejoicing that inall future efforts of our cause, they will be directed. not againstslavery in detail, in the District of C o l u m b i ~ or the internal slavetrade between the states. but against it as a whole, as an entirety.We can fence in the whole field. How thankful should we be, i fthe foregoing proposition be true, that the responsibility of slaveryrests on the entire American people, and that its overthrow doesnot depend upon the conversion of slaveholding states to oursentiments; but Congress has ample and complete power overthe question.

For all this, let us give thanks to the Most High.

Documents

00-00-01-1837-10-18 Newart, Alvan: An Constitutional Argument on the Subject of Slavery, The Friend of Man, Vol II, No 18 (1837)