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Unconstitutionality of Slavery
by Rep. Amos P. Granger, N.Y.
27 Cong Globe Appx.
34th Cong, 1st Sess (4 April 1856)

Welcome to this site, the 4 April 1856 speech, "Unconstitutionality of Slavery," by Rep. Amos P. Granger, in the U.S. House of Representatives, 34th Congress, 1st Session, in the Congressional Globe Appendix.
This writing is one of many being reprinted in this series educating on constitutional and moral abolitionists. For a series and context listing, click here.
In the material, Rep. Granger makes references to facts then known to his audience, but now generally unknown except among historians.
In that pre-Civil War era, the Slavery Lobby was pretending that slavery was constitutional. Abolitionists were denying that, by citing the many clauses in the Constitution against slavery. Granger is an abolitionist, and is speaking in that context.

UNCONSTITUTIONALITY OF SLAVERY
Speech of Hon. Amos P. Granger,
of New York,
in The House of Representatives,
April 4, 1856.

The House being in Committee of the Whole on the State of the Union.

Mr. GRANGER said:

Mr. Chairman: I am aware, sir, that the subject of Slavery is one of the most vital importance that can come before you for discussion — one that brings with it the highest interest, the deepest feeling, and involves principles of the most sacred character. I approach it, sir, with great reluctance, and prompted to it only by the stern demands of duty — a duty that, were it not a duty, I would gladly avoid. I know, sir, that Southern feeling is ardent, and on this subject sometimes fiery. The North is slow and contemplative — passive and yielding; but there is a point beyond which it will not go. To that point, sir, it has arrived. The mighty difference between the North and the South requires a settlement, and it can be delayed no longer. It must be met and disposed of. Freedom and Slavery must meet face to face, and try titles [verify constitutionality].

The question, I regret to say, assumes a sectional aspect. The North and the South are opposite parties. I would it were not so; but since it is, let us meet it like friends and fellow-citizens of this highly-favored Commonwealth, guided strictly by the Constitution, and sustaining the Union in every emergency. The Constitution was made to protect Freedom or Slavery — one or the other — not both. There can be no compromise between them — no joint ownership. It is time one or the other had full possession. The Constitution was formed by the Convention, and adopted by the people, to secure the inalienable rights of man. Slavery is incompatible with those rights.

Slavery in the United States is unconstitutional, and therefore unlawful. Slavery can have no legal existence in this country without specific constitutional legislative enactment, creating it or establishing it. Sir, there are none — there can be no such enactments. That Slavery can have no legal existence without specific legislative enactments creating or establishing it, I assert, on the authority of the Supreme Court of the United States. In the case of Prigg vs. Pennsylvania, 16 Peters, the Court declared

"that the state of

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Slavery is a mere municipal regulation, founded upon, and limited to, the verge of territorial law."

Now, I assert, there is no such law; and I assert it on the authority of the father of the Fugitive Slave Law, the honorable Senator from Virginia, [Mr. Mason.]

"When advocating the passage of that law, and discussing its provisions, the honorable Senator objected to trial by jury, on the ground that it would imply [a requirement to show judicially acceptable] proof that Slavery is established by existing law; and, said he, "it is impossible to comply with the requisition, for no such law can be found."

Now, sir, put that and that together, and the "illegality of Slavery is seen at a glance."

Go back with me to colonial times, before we were independent, and had a Government of our own, and observe the landmarks that guide us on this subject from that time to this. Slavery then existed in England, as it did in the colonies here. In 1772, Charles Stewart, of Virginia, was in England with James Sommerset, his slave. The slave absconded and became a fugitive. He was pursued and recaptured, and confined on board of a ship to be transported to the West Indies and sold.   From his prison he found means to reach the ear of Mansfield, Lord Chief Justice of England, and obtained a writ of habeas corpus, and claimed his freedom. The parties appeared and took issue. The Chief Justice gave sentence [decision] as follows:

"The state of Slavery is of such a nature that it is incapable of being introduced on any reason, moral or political, but only positive law. It is so odious that nothing can be suffered to support it but positive law. Whatever inconvenience, therefore, may follow from a decision, I cannot say this case [slavery] is allowed or approved by the law of England; and the black must be discharged [freed].''

That decision, sir, was never controverted, and remains, from that day to this, the law of England. It covered the colonies, and condemned Slavery here as well as there. Four years after, in 1776, this country declared its independence, and assumed to speak for itself.

The Continental Congress — the most august body of men that ever met — by legal enactment sustained the decision of the Chief Justice ; and, calling God to witness, declared liberty inalienable, and bondage impossible, in these United States. In that immortal instrument — the Declaration of Independence — in language too specific and positive to be misunderstood, they declared liberty sacred; and to maintain it, pledged their lives, their fortunes, and their sacred honor. This was the first great organic law, and has never been repealed. The people endorsed the Declaration, and sealed it with the blood of an eight years' war.

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Sir, it has become the political liturgy of the country; and since the 4th of July, 1776, it has been rehearsed annually in the presence of all the people. In 1778, the Articles of Confederation were agreed to, the Constitution under which this Government was administered till 1789. Most of the States then held slaves; yet, so universal was the sentiment that Slavery was temporary, and soon to expire, that in the Articles of Confederation not the slightest allusion was made to it.

And here, sir, I ask you to note that, when the United States Constitution was adopted, every one of the old thirteen States had Constitutions, except Rhode Island and Connecticut, and not one of those Constitutions established or recognised Slavery. Rhode Island and Connecticut continued on under their old royal charters, neither of which in the slightest degree encouraged Slavery. Up to this time, sir, there had been no rightful authority, or legal foothold, for Slavery in this country.

Ed. Note: Saying likewise were, e.g.,
  • Abraham Lincoln, Peoria Speech (16 Oct 1854), p 221
  • Lysander Spooner, Unconstitutionality of Slavery (Boston: Bela Marsh, 1845,
    3rd ed, 1860), Chapters II-IV, pp 15-36 .
  • Slavery was first introduced here without law — by a crime the law declares piracy.

    Ed. Note: See references on slavery never having been established by law, e.g., William J. Wood, "The Illegal Beginning of American Negro Slavery," 56 American Bar Ass'n Journal (#1) 45-49 (Jan 1970).
    Thus "the status of slavery was not recognized in English law"—Lawrence Henry Gipson, The Coming of the Revolution 1763-1775, in Henry Steel Commager and Richard B. Morris, eds., The New American Nation Series (New York: Harper & Row, Torchbooks University Library, 1954 and 1962), p 4.
    Re "the legal aspect of the slave trade and of slavery. The one and the other were from the beginning utterly illegal . . . neither the slave trade nor slavery had any legal sanction," says Prof. Francis William Newman, M.R.A.S, Anglo-Saxon Abolition of Negro Slavery (London: Kegan Paul, Trench & Co., 1889), p 3.

    Without law it has been tolerated — permitted to remain, until it has attained a degree of strength and arrogance, that it presumes to come here, in this temple of Liberty, and par rank with Freedom. We have now arrived to the date of our present Constitution; and unworthy be the ingrate who will not maintain it to the last extremity. And now, sir, comes the question: Did the Constitution create or establish Slavery? Sir, examine the entire document, and mark its general scope, object, spirit, and bearing — nay, its very letter — and let it decide whether Freedom or Slavery shall bear sway in this Republic.   The Constitution, article one, section nine, on the one hand, says, "No title of nobility shall be granted;" on the other, in the same section, "No bill of attainder shall be passed."   Not content with that, it reads, (section ten,) "No State shall pass any bill of attainder."   We had revolted from a monarchy where privileged orders prevailed; hence the framers of the Constitution determined to bar the door against them. Sir, a law to create or legalize Slavery, either by Congress or any State, would be to pass a bill of attainder, and, therefore, as null and void as would be a bill to grant a title of nobility.

    Sir, to grant a "title of nobility," or to elevate a class or family by law above the level, was an idea never for a moment entertained by the framers of the Constitution. And, sir, a proposition to enslave, degrade, and chattelize, one class of persons, for the avarice or pleasure of another, and

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    to attaint the blood and send it cursed with hereditary taint through succeeding generations, would have been repelled with indignation. Here, sir, is a direct and positive prohibition of Slavery, which cuts it up root and branch. In the same tenth section it is also written, "No State shall pass any bill impairing the obligation of contracts." Now, that Slavery not only impairs the obligation of contracts by wholesale, but actually deprives a large class of persons of the power of making contracts at all, and declares such contracts as they may make null and void — here again Slavery meets a repulse, and is driven from the Constitution. Again, article one, section nine: "The privilege of the writ of habeas corpus shall not be suspended in time of peace," the Fugitive Slave Law to the contrary notwithstanding. Now, sir, what is this writ of habeas corpus, the privilege of which shall not be suspended? Says Blackstone:

    "The object of the writ is to bring the body of the prisoner who has been restrained of liberty into court, who shall determine whether the cause of his commitment be just, and thereupon do as justice shall appertain. It is to be directed to the person detaining another, and demanding him to produce the body of the prisoner, with the day and cause of his capture and detention, to do, submit to, and receive, whatsoever the judge or court awarding the writ shall consider in that behalf.''

    It is for the special protection of personal, individual liberty, a right to the privilege of which all are entitled who claim they are deprived of it without due process of law. All, without discrimination of caste or color; all, male and female, citizen and alien. It is the body-guard of personal, individual liberty, in this country. Sir, the hand that is raised against it aims a blow at the heart of Liberty itself. This the Fugitive Slave Law has done. Here again Slavery finds in the Constitution a successful rival, and is forced to yield. Sir, this potent privilege of the writ of habeas corpus, this all-powerful protector of individual personal liberty, must be suspended, or Slavery can be no longer tolerated. Sir, there is not a slave in this Union who is not entitled to the privilege of this writ, and not one who, with a fair and impartial trial under it, would not, like Sommerset, obtain his freedom.

    "This writ," says Blackstone's commentator, "makes Slavery impossible in England." I say, sir, this writ makes Slavery impossible in America. If he could say thus much of it in a monarchy, may I not say as much of it in a Republic? Sir, the writ of habeas corpus and Slavery cannot exist together ; they cannot breathe the same atmosphere; one or the other must perish.

    Again, in section ninth of the Constitution is this clause:

    "The United States shall guaranty to every State a republican form of government."

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    A State Constitution that expressly authorizes Slavery, and legalizes an institution that allows one man to enslave another — that chattelizes human beings, and makes them marketable like horses and swine — that a man has no right to his wife, his children — nay, does not own himself, but can be sold on execution, and made to follow like a dog and obey his master — a Constitution like that has, in my view, very little claim to a republican character. Perhaps I may be called on to vote for the admission of a State with such a Constitution. When I vote for it, sir, I give due notice it will be after this.

    If there still remains a doubt how the Constitution should be understood on this subject, ask it. Ask it, sir, and it will tell you. It gives no uncertain sound. Listen, sir, and hear its own explanation:

    "We, the people of the United States, in order to form a more perfect Union, to establish justice, to insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of Liberty to ourselves and our posterity, do ordain this Constitution for the United States of America."

    Here, sir, you are expressly told, by the Constitution itself, that it has Liberty, not Slavery, for its object. Sir, this is language that cannot be trifled with. And lest there might be some that hesitate, and perhaps claim that the Constitution was made, not for Freedom, but for Slavery, a codicil was subsequently added, explaining, qualifying, overruling, nay, sir, annulling everything inconsistent with it in the original instrument. I will read it, sir, from the fifth article of amendments to the Constitution:

    "No person shall be deprived of life, liberty, or property, without due process of law."

    This, sir, goes back and covers the whole ground. No person — owing labor or not — no person shall be deprived of liberty without a fair trial for his offences. There it is, in letters of iron. It stands out in bold relief, the all-pervading sentiment of the Constitution. Sir, this alone, if there was nothing else in the Constitution to sustain it, settles the question, and seals the death-warrant of Slavery. No State has power to save it, even within its own borders. No State rights, no State sovereignty, has power to protect it. And so declares the Constitution:

    "No person shall be deprived of life, liberty, or property, without due process of law."

    Sir, was ever language so emphatic? Was ever law more decisive? Article sixth sums up as follows:

    "This Constitution and laws of Congress, and treaties made pursuant to it, shall be the supreme law of the land, Constitutions of the States and laws of the States to the contrary notwithstanding."

    As against all these positive provisions of the Constitution in favor of Liberty, and against Slavery, the advocates

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    of Slavery present us with the second section, article fourth, which provides for the return of persons owing service or labor, and who have absconded and left the State. And it provides for nothing else. It reads as follows :

    "No person held to service or labor in one State, under the laws thereof, escaping to 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."

    A person owing labor in one State, and fleeing to another, shall not be discharged from such labor by any law of the State to which he goes, but shall be given up — to whom? To the person to whom such labor may be due. And if that is not to be ascertained by a fair trial, by due process of law, then you may as well take one man as another. If you are not to ascertain by due process of law who the person is that owes labor, and to whom he owes it, then I say you may as well take one person as another. Mark, sir, color has nothing to do with it. So far as the question of Slavery is concerned, this section is of very little consequence, one way or the other. That it means slaves, I deny. It does not describe their, condition. It cannot mean slaves, for the framers of the Constitution objected to the word slave; and President [James] Madison, the father of the Constitution, said : "It is wrong to admit into the Constitution the idea that there can be property in man;" and even the word "servitude " was, on motion of Mr. Randolph, of Virginia, unanimously rejected, and the word "service" inserted. Sir, let Virginia and the whole country hear and heed the reason given for this unanimous vote; the reason given, sir, was — "because the former was thought to express the condition of slaves, and the latter the obligation of freemen."

    The idea that it meant slaves is repudiated by the very terms of the section; for it says, "persons owing service or labor." Sir, if you are to transform a person owing service or labor into a slave, you must look elsewhere for a license to do it. Now, a slave, a chattel, no one will contend is indebted or owes anybody labor or anything else. That is impossible.   A slave is incapable of making any contract whatever. The slave you catch under that clause is just no slave at all. It is some person owing labor, and gone out of the State to get rid of the debt [advanced pay].   In defiance of at least three positive provisions of the Constitution, the Fugitive Slave Law grabs somebody, black or white, for it makes no distinction of color — demands of him a life's labor — suspends "the privilege of the writ of habeas cor-

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    pus'' — denies him "trial by jury" — and "deprives him of liberty without due process of law," and works him, or whips him, or sells him, as it likes.

    There is one other clause in the Constitution, referred to by the advocates of Slavery as favoring of their views:

    "Art. 1, Sec. 2. — 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 tree persons, including those bound to service for a term of years, and excluding Indians, not taxed, three fifths of all other persons."

    It is claimed [by slavers and their accessories] that the three fifths of all other persons means slaves. Then, why not say so? But suppose it does, it was merely a compromise with Slavery, in which, like all other compromises with Slavery, Freedom gets cheated. With an understanding that the public burdens would be borne or taxes paid by the slave States in proportion to their Representatives in Congress, the slave States obtained, and now possess, the unfair advantage of some twenty-one Members of Congress, and an equal number of Presidential electors, more than a fair share, while they have long since ceased to furnish a dollar in consideration of the agreement. Thus the slave States have a controlling property representation in Congress, with which they continually invade the soil of Freedom, while the free States have no such property representation to resist the invasion. Besides, sir, by a property representation which the free States do not enjoy, the slave States meet us at every Presidential election with some twenty-one extra electoral votes, and for all which they pay not a farthing of the stipulated consideration. Sir, by this fraud the free States are, to a great extent, disfranchised. The property representation of the slave States not enjoyed by the North is equal to some eighteen hundred thousand votes, or in effect disfranchising some eighteen hundred thousand Northern freemen — more than five times the number of all the slaveholders put together.

    Sir, five slaveholders, with each one thousand slaves, have more power in Congress, and at every Presidential election, than three thousand Northern freemen. And now we are coolly asked to remain quiet, and submit to have this unfair advantage over us not only perpetuated, but to have it multiplied, and increased, and extended, to an indefinite extent. Sir, I ask, with all due respect, is not this a little too much?

    Now, sir, for section ninth of the Constitution. Here again Slavery seeks shelter:

    "Sec. 9, Art. 1. — The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited prior to 1808."

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    This is claimed by some to be a recognition of the slave trade. If it was, it was a recognition with a vengeance. It was to put an end to it. And here, sir, allow me to quote as authority a rule of interpretation of the United States Supreme Court:

    "When rights are infringed, when fundamental principles are overthrown, when the general system of laws are departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such an object." [See details.]

    "When rights are infringed," the legislative intention must be expressed with irresistible clearness.

    Sir, will any one pretend that the Constitution expresses "with irresistible clearness " that one man is allowed to infringe on the rights of another so far as to deprive him of his liberty — to take possession of his wife and children, and make them subservient to his will — to sell them to a returnless distance from their native home, and from each other, and pocket the money? God forbid that the Constitution of my country should harbor such a sentiment!

    Sir, you are not to rely on doubtful passages of law, you are not to infer or guess, when the dearest rights of man — even Liberty itself — are sought to be overthrown. Nothing short of positive declarations, expressed "with irresistible clearness," can give Slavery the slightest foothold in the Constitution.

    And here, sir, in the presence of this House and the country, I take occasion to say, that the Constitution nowhere gives Congress power to legislate for the return of fugitive slaves, Sir, I demand that the power be pointed out "with irresistible clearness," or the claim to it be abandoned forever. Sir, all attempts to sustain Slavery in the Constitution take for granted the legality of Slavery when the Constitution was formed. Without this assumption, no such claim would ever have been set up. But, as this assumption is untrue, the whole fabric of Slavery in the Constitution falls to the ground. Sir, if this glorious republican Constitution of this glorious land of Liberty, the asylum of the oppressed, this home of the brave, and this land of the free, takes sides with Slavery, then I confess I do not understand it. Sir, the Constitution, both in spirit and express terms, repudiates Slavery, and positively bars its exstence. Slavery is war, open war, on the rights of man. It is death to rights inalienable. Its very name was offensive to the Convention that formed the Constitution, and was denied a record. Slavery in the Constitution! Sir, it would be like engrafting wormwood into the tree of Liberty!

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    This speech can also be found at http://www.archive.org/details/slaveryunconstit00gran

    For an overview on slavery's unconstitutionality, see http://medicolegal.tripod.com/slaveryillegal.htm.

    See also Rep. Granger's 1859 anti-slavery speech.

    The South lost the Civil War,
    but is winning the peace
    by censoring out of our history books,
    the voluminous record of abolitionists' writings
    on the unconstitutionality of slavery.














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