This site reprints Benjamin F. Shaw's 1846 lecture, Illegality of Slavery.
During the pre-Civil War slavery era, there were a number of abolitionists such as James Otis (1761), William Mansfield (1772), John Adams (pre-1776), Samuel May (1836), Salmon P. Chase (1837), George Mellen (1841), Alvan Stewart (1845), Lysander Spooner (1845), Joel Tiffany (1849), Lewis Tappan (1850), William Goodell (1852), Abraham Lincoln (1854), Edward Rogers (1855), William E. Whiting, LL.D., et al. (1855), Rep. Amos P. Granger (1856), and Frederick Douglass (1860), who provided analyses on slavery law.
They provided evidence showing that pursuant to common law, centuries of precedents, and constitutional and legal principles, slavery was unconstitutional, and illegal as well, pursuant to anti-kidnaping laws.
The legal principles they relied on dated back to the Magna Carta and habeas corpus, which banned indefinite detentions without due process, e.g., banning detentions without charges verified by conviction in a jury trial.
Preparatory to your reading this site, reading the historical and constitutional law overview, and/or some or all the above authors' writings, may be helpful.
Benjamin Shaw was an abolitionist lecturer. This site reprints his lecture "Illegality of Slavery." After you read it, feel free to join the discussion forum.
Shaw's lecture provides in a brief overview, conversational- and debate-style, some of the many principles making slavery unconstitutional. References are to then well-known constitutional provisions, prominent officials, the 1793 Fugitive Slave Act, etc., as would be known then to American audiences.
Illegality of Slavery
It is for want of attention to this principle, in judging according to law and evidence, that we have among us, so many more Esquires than Justices. Here is one argument to prove
|Ed. Note: This is a reiteration in other words, of “Quod ab initio non valet in tractu temporis non convalescet. That which is bad in its commencement improves not by lapse of time. Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time.”—Black's Law Dictionary (5th ed, 1979), pp 1126-1127.
See also William J. Wood, "The Illegal Beginning of American Negro Slavery," 56 American Bar Ass'n Journal (Issue #1) pages 45-49 (January 1970).
- writ of habeas corpus,
- trial by jury, and
- principles of the common law.
Somerset covered America, "because the precedent had become part of American common law."—William M. Wiecek, "Somerset's Case," Encyclopedia of the American Constitution, Leonard W. Levy and Kenneth L. Karst, eds. (New York: Macmillan Reference USA, 2000), Vol 5, pp 2451-2452.
England could not make it lawful here, on account of her foundation principles; and the colonies could not, because they either had no sovereignty by which to make a slave; or else their charters required them to make their laws according to justice and reason, and as near as possible, like the foundation principles of the English government; which, of course, make slavery illegal.
establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity? we ordain. &c.
|Ed. Note: Other abolitionists agreed, e.g.,
1st. No State shall pass any bills of attainder. Now every bill that makes the child follow the condition of the mother, attaints the child and makes it a slave, because the mother is reputed to be a slave; and is a bill of attainder in every proper sense of the word. Let this prohibition be enforced by the supreme law of the land, and every child
born after that is born free, and according to the declaration of Independence, and that is the way they ought to be born; and nobody has any business to be born any other way. And that would overthrow slavery. 2d. No State shall make any law impairing the obligation of contracts. Every law that makes the slave, property, so that he can possess nothing but what is his master's, does that effectually. So that if you buy the property that the slave possesses; the master, or his heir, or creditor, can take it all away. Enforce this prohibition and the slave ceases to be property, so that he can really own what he possesses; and this would overthrow the hellish system.
1st. They have power to enforce the constitution; for this constitution and all laws of the United States made in pursuance thereof, and all treaties, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any law or constitution of any State to the contrary notwithstanding. Hence, those who exalt State rights above the laws of Congress, put the cart before the horse. 2d. Congress has power to provide for the common defence, in any way they think proper. By burning a city, (as Russia burnt Moscow,) or taking any private property for public use by paying for it. They may press the slaves into service in time of war and danger, and if all are lost, they will not have to pay for them, any more than for other people that are pressed and lost. And in like manner, if they free them all in case of invasion, to provide for the common defence; or if they do it in case of an insurrection, they will not be obliged to pay a single cent. Nor are they bound to wait till the bristling bayonets of an enemy, are presented to the breasts of our countrymen. They may, and often do, provide beforehand; and they can. If they judge it to be dangerous to the national safety, do it without any pay. Yea, the danger may become so immi-
nent, that even slaveholders may be glad to see it done, pay or no pay. A man had his horse, wagon, and slave, pressed into the service in the last war with England, and all were lost, and he demanded pay, and got pay for his horse and wagon, but not for his slave. And why? Because the constitution recognized him as a person, and not as property.
3d. Congress has exclusive legislation over the District in all cases whatsoever. They had no right to make a slave, any more than a king; yet they did it, by renewing the slave laws of the District, without which, every slave was free by the cession. For the law that called them slaves, as well as other laws of Maryland and Virginia, ceased when it was ceded. And it is a pity if Congress cannot put down the unconstitutional law they put up. Nay more, the supreme court may put it down, because it is unconstitutional. Let it be done cither way, and the South say, it will be the entering wedge, to rive slavery from the nation. Well then, let every northern man give it a blow by voting right, and drive it home as quick as possible. 4th. They have power to regulate commerce with foreign nations, and among the several States. They may, in doing this, abolish commerce, so far as it is injurious to the general welfare; and they have the same power to stop the trade in human beings from State to State, as from Africa to this country; and if this be done it will be no object for the slave-breeding States, to raise them like pigs and lambs to sell; and then the slave consuming States could not buy slaves to wear out once in seven years; and the system like a dead carcass would all rot away together. 5th. They can, yea they must stop the trade from neighbor to neighbor; for all treaties are a part of the supreme law of the land, any law or constitution of any State to the contrary. In the treaty of Ghent, our government said, "we will use our utmost endeavors to promote the entire abolition of the traffic in slaves, throughout the whole world." If the South are a part of the whole world, then down with that accursed trade in human blood; and that will give the system a death blow. 6th. They can lay on direct taxes in such a way as to kill it, and whether it would injure or benefit our pockets, I would risk my part. 7th. They can enforce the writ of habeas corpus, which shall not be suspended, unless in cases of invasion, or rebellion. Let a slave by direction of Congress or otherwise, be brought before some of the judges of the supreme court, and they must decide whether he is deprived of his liberty justly, or not, and if not, he goes free and with him every one in the
same condition. There are more reasons why it should be done here, than in England, when it was done there.
8th. They can unmake the unconstitutional law they made in '93, and secure a jury trial to the reputed slave, and this would do something towards the release of the oppressed.
Ed. Note: The Sixth Amendment guarantees the right to jury trial, an ancient right from the English 'common law.' See references: Patton v United States, 281 US 276, 288; 50 S Ct 253; 74 L Ed 854 (1930) Duncan v Louisiana, 391 US 145, 149; 88 S Ct 1444; 20 L Ed 2d 491 (1968). 9th. They can, not only dispose of the territory, or other property of the United States, as property, but also make all needful rules and regulations, or laws respecting it. Mr. Cass and others, argued on this clause, as if the conjunction and, joined only one idea together. But disposing of, and, making needful rules, or laws, are two ideas, very distinctly; and many who helped to frame this clause, helped the first Congress to explain and apply it, by forbidding slavery in all the territory they possessed, and even putting down what slavery there was, in the part formerly belonging to Virginia. In the Missouri compromise, the same needful rules or laws, applied to all the territory north of the compromise, in the Louisiana purchase; not only forbidding any future slavery, but actually putting it down in a large tract of land, where it existed already, i.e., north of the compromise. And similar rules have been made under nearly every administration of our government.
The Wilmot, or rather Jefferson proviso, (for he was the first framer,) is perfectly constitutional, and if it be confirmed in the vast territory now free, the South will be surrounded with freedom, and slavery will become a dead carcass, that they will be glad to get rid of.
Secretary Upshur said, Texas must be annexed, or slavery will go down there, and we shall be surrounded with freedom, and it will go down among us; and that is a thing, not to be thought of. And so said Mr. Calhoun. So here is another way to down it. This is the reason why the Calhoun tribe, are getting up treasonable caucuses. I call them treasonable, for the constitution says, " no State shall enter into any treaty, alliance, or confederation, &c.* 10th. They can through the aid of the judiciary, break up all the slavery in the new slave States, because it is unconstitutional. For Congress has no more power to make a slave, than a king. And as the territories had no sovereignty by which to make a slave, they were made so by Congress, without constitutional authority. As Texas was admitted as territory, before it was a State, it was under the same principles of our government as other territory. And inasmuch as we have only six old slave States, and thirty States in all; if the new ones become free, we have six more than enough to alter the constitution so as to free every slave in the six old States in that way. Nor
*This is being an enemy, instead of aiding one.
would this be interfering with State rights, for they entered into the compact, by which the bound themselves to abide by the constitutional alteration of the compact, and therefore it would be virtually their own act.
llth. They can compel each State to grant to the citizens of each State, all the privileges and immunities of the citizens in the several States. This principle of the constitution is unheeded by the South. A citizen is cither an inhabitant of a place, or a freeman of a city. You man a vessel with free colored citizens of Boston, because you think they can endure the southern climate best, or for any other reason; and when you arrive at some port in South Carolina, their police will come on board, and impress and imprison your seamen. And when you come away, they require you to pay them for heating tho poker that they have plunged into your bowels. Where is the war cry of 1812,—free trade and sailors rights? They dare not do so to English sailors. Why not? Let the doughfaces in Congress answer.
1st. Besides free persons, including those bound to service for a term of years, and excluding Indians not taxed; three-fifths of all other persons are counted, in apportioning representatives and direct taxes. The term, free persons, seventy years ago, applied to those who had the right to hold property and vote and be voted for; while aliens, and sometimes paupers, were other persons not free in this sense. But, if it ought not to be applied to this clause, the other persons are not recognised as property, but as persons. And it was not a compromise about slavery, but about representatives and direct taxes. It abridges their right of suffrage, two-fifths of the slave persons, while we have five-fifths of all persons counted; and it increases their direct taxes to the amount of three-fifths of their slaves. This compromise, if it is one, is against slavery as much as for it, and neutralizes itself; except through the maladministration of the slave power, and the consent of northern partisan doughfaces, allowing slavery to make four-fifths of our national expenses, and the free States to pay four-fifths of those expenses, by indirect taxes on goods that we consume, that the slaves are not allowed to use. 2d. The United States shall protect each State against domestic violence. Very well, slavery is domestic violence. Down with it then. But we are not required to do it, unless the legislature or governor ask it; and slaves cannot do it in that way. Suppose we have domestic violence among our domestic property. The cattle go to hooking out our bowels, and the horses kicking out our brains, if we have got any left, after being bamboozled by the slave power so long, and we ask their aid, would they come? If not, are we bound to go and help them put down domestic violence, among their domestic property. Not at all, if it is property. But if they are persons, must not we put down domestic violence among these persons, as well as other persons. Yes, certainly; and if we had the light kind of rulers, they would put it down according to the scriptures, by proclaiming liberty to all the inhabitants throughout all the land. They might well say, as Gen. Jackson used to; this is the constitution as we understand it. Would not that put it down quick, cheap, constitutionally, and without the effusion of blood? and even be better for the masters. But the great support to slavery is yet to come. Let us look at it. 3d. 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 grammatical construction would allow us to say, no such person shall be delivered up, &c. But waving this as a mere play of words, it properly applies to apprentices, and such as bound themselves for a term of years, to pay the expenses of their fare in crossing the mighty deep. If these or apprentices, escape before they have fulfilled the contract, they owe service, &c.
Ed. Note: See other objections to applying this clause to alleged slaves, by, e.g., Lysander Spooner, Unconstitutionality of Slavery (Boston: Bela Marsh, 1845, 3rd ed, 1860), pp 67-73 Lewis Tappan, The Fugitive Slave Bill: Its History and Unconstitutionality (New York: William Harned, 1850), pp 25-26.
Again, in making up the number necessary to entitle a District to a representative, it shall be determined by adding to the number of free persons, including those who are bound to service, &c. Now if those bound to service
are included among free persons, why not those that are only held to service, included among free persons. But suppose it refers to slaves, they are recognized only as persons, and not as property. Again, they are only to be given up on claim; i.e., when the claim, is proved. For instance, a slaveholder claims me, I challenge the claim, and what then? No person shall be deprived of life, liberty or property, without due process of law; therefore all the slaves are unconstitutionally held in chains, because the masters did not get their liberty away by judge or jury; and therefore, the supreme court can set them free with the dash of the pen. Or if they did, they must have another process of law, with the escaped slave. In suits of common law, where the value in controversy shall exceed twenty dollars, (and liberty is worth a good deal more than that,) the right of trial by jury shall be preserved.
Now where will you find a decent jury in a free State, that would decide that the reputed slave owes service to the reputed master. If I was one, I should want as much evidence as judge Harrington of Vermont wanted; a bill of sale from God Almighty. Judge Williams of Vermont says,
"if a case of the kind should come before me, I would dismiss it at once; for I know that no man can bring evidence enough to prove to me, that another man is his property."
And if the jury do not deliver him up to the master, no man can. Talk about a slave owing service! The master owes him.
|Ed. Note: See background on reparations.|
|Ed. Note: Correct. Contrary to pro-slavery mythology,|
the Hebrews did not have, did not allow, slavery.
2d. Does not recognize, and if did, that it could not authorize or protect it.
3d. Does not intend it, but its indirect overthrow after 1808.
4th. Does not express a pro-slavery intention, but its opposite in the preamble, and if there be any thing contrary to this, it is null and void,—a nonentity, by a well known principle in law.
5th. Does not give any State any right to hold slaves.
6th. Does not compromise liberty and slavery.
7th. Does not secure the return of fugitives from American injustice.
Walter Mellen , in a bound volume, worth [costing] seventy-five cents or a dollar, quotes largely from the debates, at the time of the adoption of the instrument. Mr. Goodell , in a large pamphlet, gives a good common sense view of the subject. Mr. Spooner's work  is a legal, logical view of the same, and adapted to professional men: Price, twenty-five cents.
|Ed. Note: What abolitionists are doing is rebutting the pro-slavery “eisegesis” (imposing one's views upon a passage) as opposed to “exegesis” (drawing out the meaning of the passage from its context) with respect to the Constitution.
Pro-slavers did “eisegesis,” i.e., imposed their pre-determined minds-made-up-in-advance pro-slavery views on the Constitution.
Anti-slavery writers showing proper analysis, i.e., defending and establishing the “exegesis,” were drawing out the words' actual meaning, were demonstrating the Constitution's actual anti-slavery meaning.
FOR FURTHER READING
Testimony of Slavery Conditions
Somerset v Stewart (1772)
Overview of the
Unconstitutionality of Slavery
G. W. F. Mellen's 1841
Unconstitutionality of Slavery
A. Stewart's 1845
Unconstitutionality of Slavery
L. Spooner's 1845
Unconstitutionality of Slavery
J. Tiffany's 1849
Unconstitutionality of Slavery
Rev. Wm. Goodells' 1852
Slavery and Anti-Slavery
H. Stowe's 1853
History of Slavery aka Key
A. Lincoln's 1854
E. Rogers' 1855
Unconstitutionality of Slavery
Radical Abolitionists' 1855
F. Douglass' 1860
Unconstitutionality of Slavery
Republican Platform (1860)
C. Sumner's 1860
Barbarism of Slavery
H. Wilson's 1877
History of Slavepower
|Slavery involved constitutional rights denials. There was, e.g., no "procedural due process" in terms of enslaving people. When there is such a violation (no due process), the injured person is entitled to damages (reparations) even if not harmed.
Slavery of course involved holocaust-level harm. For a discussion on even the 'no-harm' situation, see Carey v Piphus, 545 F2d 30 (CA 7, Ill, 1977) rev'd and remanded 435 US 247; 98 S Ct 1042; 55 L Ed 2d 252 (1978) (damages award as procedural due process is an "absolute" constitutional right).
|Shaw's 1846 lecture was eight years before the 1854 founding of the Republican Party. That Party, as its 1860 Platform shows, focused somewhat on "anti-extensionism" of slavery, resisting Southern efforts to expand it.
In 1854, Shaw is identified as by then, "a Republican editor."
In 1860, Shaw discussed Republican efforts to get abolitionists to vote for Abraham Lincoln, "they generally having refused to do so . . . for the reason that the Republicans [supposedly] did not propose any action leading to the abolition of slavery," only halting extension. Shaw's idea was, abolitionists should support anti-extensionists, as tending toward the same, says Edward Magdol, Owen Lovejoy: Abolitionist in Congress (New Brunswick, NJ: Rutgers University Press, 1967), pp 215 and 253.
In reality, of course, the 1860 Republican Platform, carefully read, deems slavery unconstitutional everywhere on U.S. "territory."
When the "anti-extensionists" and "abolitionists" coalesced in 1860, Lincoln won.
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