Constitutional Law Lecture, "Illegality of Slavery" (1846), by Benjamin F. Shaw

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
by
Benjamin Shaw
(Boston: 1846)

I boldly assert, that it is my honest conviction, that there is no legal or lawful slavery in America, in any proper sense of the word; and that there never was any such slavery here, and never could be; at least until [not unless] our government is overthrown [meaning, not unless our Constitution is repealed].
I ask, is it possible for Massachusetts to legalize slavery, or make it lawful? Can she legalize robbery, murder, and all sorts of villany, or make them lawful? Can she lawfully take away all the natural rights of half of the people [the slaver untermenschen view], and give them to one-twentieth part of the rest? Would not that be unlawful usurpation, despotism, tyranny, and brute force instead of law. Would not the writ of habeas corpus make it null and void; because it is a part of the supreme law of the land, and the judges in every State, be bound thereby; any law or constitution of any State to the contrary, notwithstanding [Article VI § 2].
And as this State cannot make it lawful, no State can, nor ever could; and what was not lawfully begun, cannot be legally continued. Otherwise, [John C.] Calhoun and Berrien [loud-mouthed white pro-slavery advocates of that era] may be enslaved illegally, and after being sold a few times, become lawful property, or even made legally slaves at first.
Ed. Note: “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.

The terms law, lawful, legal, relate to all law, from the lowest to the highest. A town may make a law that will be lawful and stand, if it does not conflict with state-law; if it does, it is null and void. A State can make a law that will stand, if it does not conflict with a national law; if it does, it is null and void. A nation can make a law that will stand, if it does not conflict with the organic, or constitutional law; or rule for making laws; if it does, it is null and void; because the higher and highest, are paramount [superior] to the lower and lowest.
So also the organic law or constitution will stand, if it does not conflict with the law of God, the still higher constitution of the universe; if it does, it is null and void for so far as it does, exactly for the same reason. 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
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slavery illegal.
A second is, that the slave trade never was legalized; of course, the first slaves were stolen, and those who bought of the thieves, had no more legal title than they; and only continued the theft; and, therefore those who claimed to be heirs to them, had no more legal title than either; and it is nothing but continued theft, without any legal foundation to the present hour.
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).

A third argument is, that in 1772, four years before the declaration of Independence, Lord [Chief Justice William] Mansfield, and the English court, through him [in the case of Somerset v Stewart], declared all slavery illegal throughout the British dominions; because Granville Sharp proved that the foundation principles of the English government, rendered it impossible for slavery to be legal; and those principles were,
writ of habeas corpus,
trial by jury, and
principles of the common law.

Hence, though that court had, like our own courts [allegedly previously to 1772], declared slaves to be property, they reversed all their [alleged pre-1772] former decisions, and made them null and void, as our courts ought to, and I hope will do hereafter.
Ed. Note: Actually, the 1772 Somerset decision followed the pre-1772 precedents, as the full text of the decision material itself shows. (Shaw had evidently seen only the shorter versions, not the full Howell's reprint text of Somerset available to you, online).
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.

This [1772 English] decision ought to [and did] apply to the thirteen colonies, because they were in those [British] dominions at the time.
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.

When this nation was organized, it adopted all three of those principles, that made slavery illegal through England; and hence by the authority of this nation, they make it illegal. And more and better, when the States organized, they adopted these three principles, as a foundational part of their State governments. So by their own State authority even, all slavery is illegal throughout each of the States. If any say we ought to except Louisiana, I reply, she has the code Napoleon which is, if possible, more favorable to liberty.
But we have another and more important foundational principle of our national and State governments, and that is, that all men are born or created equal, (i. e., in their rights) and because this clause was found in the constitution of Massachusetts, the supreme court declared it unconstitutional, or illegal on that account, throughout this State. Thus slavery was overthrown in this State without legislation. As it was set up, without any law to authorize it, just as it was in the rest of the States and territories, so it was put down without any legislative act, as it might be, in every State in the Union. For this clause in the constitu-
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tion, or declaration of Independence, which was the only constitution of the nation for two years; made slavery as unconstitutional throughout the nation, as the same clause did throughout this State. And as this was the act of every delegate of every colony, it was binding upon each, and every one of them. This made the colonies a nation, and all the people citizens, and then it was too late for a State to take a citizen of the nation, and make him the property of an individual of a State. This would be giving more power to a single State, than to the whole nation, including that State among the rest, which would be an absurdity.
But even if it had been in the power of any State to legalize slavery afterward, they could not lawfully enslave the colored people; because they were mostly kidnapped free colored people, and their descendants, who had the right to be free; and if any might be slaves, no one could tell who they were, for they were all mixed up together; and they had no business to enslave a part, at a venture.
Besides, they had no legal right to enslave the posterity of the white citizens; and indeed all they did, or could do, to legalize this sum of all villanies, was to enact that all that are now slaves, (when none were legally such,) shall continue such, &c. But that does, not make them legally slaves.
So far then we find no legal slavery, let us see if we can hunt it up anywhere else. Does the constitution guaranty slavery! No, it guaranties a thing that will overthrow it, if enforced. For the United States shall (not, they may or can, merely, but they shall) guaranty to every State of this Union, a republican form of government. Now republican is representative, and this implies the right of suffrage. As nearly half of the men in half of the States are deprived of this natural God given right, on account of their color; (or rather on account of their African descent, as some of them are nearly white,) and about half of the other half, on account of the property qualification; there is no republican form of government in the South.
If, because, one quarter of the men have the right of suffrage, it is a representative form of government; then it would be, if one-eighth, or one-sixteenth, or one-thirty-second, or one-sixty-fourth, or a one-hundred-and twenty-eighth part, or even only just enough to hold office, are represented; and they vote themselves, and each other in. This would be a curious republican form of government, would it not? Enforce this guaranty, and give the colored people and others, the right of suffrage, and then what would become of slavery! They would vote it down, right quick.
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If Congress do not enforce this guaranty, do they not perjure themselves in the sight of high heaven and surrounding earth ? Well, does not the constitution recognize slavery? No, never!
But suppose it does, what then? Does it protect or authorize it? Not at all. If I recognize a man that is drunk, does that prove that I had any hand in making him drunk.
Mr. [James] Madison said, it would be wrong to admit into the constitution, the idea that man could be property, and they did not admit it, nor did they intend to admit it. Hence, the colored people are always recognized as persons, and never as property.
At that time slavery existed in all the States, by brute force, without any law going before to authorize it; and therefore, as the States did not recognize it as a State institution, any more than other existing evils, the nation could not recognize it as such; and it is the height of absurdity to assert it, and a high reproach upon, if not blasphemy against our fathers, who appealed to heaven in behalf of the self evident truths of the declaration of Independence.
As all the States had slaves, there could be no compromise between free and slave States, as some have foolishly asserted. The majority intended to have a free constitution for a free people, and they got it, and yet, we let slaveholders administer it, as they understand it, or rather, as they construe it. But whatever the intentions of our fathers were, their unwritten intentions are not binding on us. But if they are, I will bring one on the side of liberty, that outweighs all on the side of slavery.
They believed generally, if not universally, that stopping the slave trade would uproot slavery, and yet, believing this, even Georgia and South Carolina, were willing that Congress should have power to prohibit the migration or importation of persons, into any State that saw fit to admit them, after 1808. So, as this includes slave persons, as well as other persons, it seems they meant it should have been dead and buried 40 years ago. They wanted colored laborers, but were not so anxious to have them slaves, as they now are.
If their [the Founders'] unwritten intentions are so favorable to liberty, what are the written intentions of the constitution? These are in the preamble.
What! did our fathers lie, by saying, in order to
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.

Let either [any] of these be done, and what becomes of slavery? Can it stand against the establishment of justice? Must not that anti-domestic usurpation be overthrown, that the institutions of heaven may be ensured to
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the families of the slaves and masters. Let the common defence extend to the slaves, and let their welfare be promoted with the welfare of others, and slavery dies. Secure the blessings of liberty to the people and their posterity, and that will take away the curses of slavery from every one.
Ed. Note: Other abolitionists agreed, e.g.,
Frederick Douglass, Constitutional Law Lecture (1860), p 14
L. Spooner, Unconstitutionality of Slavery (1845), pp 90-94
Joel Tiffany, Unconstitutionality of Slavery (1849), pp 55-58
Alvan Stewart, Constitutional Law Speech (1845), p 40.

But secure the blessings of liberty to only the posterity of the so-called white people, and that will overturn the filthy system; for there will hardly be a grease-spot of slavery left.

Not only the best blood of Virginia and other slave States, flows in the veins of the slaves, but thousands of the sons and daughters of Northern men, are now clanking their galling chains. A Presbyterian minister who lives in the South, told me, it was mainly the fault of Northern men. And several pro-slavery men who have lived long at the South, admit his assertion true, or nearly so.
Besides, there is reason to fear, that one of the reasons why slavery is not overthrown in the district of Columbia, is, that it would be inconvenient for some of the members of Congress, to break up the black seraglios at or near their boarding places. I could relate a story here that would make even Northern members hang their heads, but I forbear, and say, Tell it not in Gath, publish it not in the streets of Askelon [2 Sam. 1:20]. O, shame where is thy blush! I am ashamed of my country! O that mine eyes were waters! [Jer. 9:1, 18].
If our fathers were not the most arrant knaves and hypocrites, they meant as they said; and if there is anything in the constitution contrary to these principles, it must be by accident. It is a principle in law, that if an instrument contradicts itself, or is dark or doubtful, or will admit of two interpretations, that interpretation most favorable to liberty and justice, is the true one. So that if there is any clause in the constitution favorable to slavery, it is null and void; and swearing to support the constitution, is not swearing to support this clause, for being null and void, it is just as much a nonentity, as if it were not written there. And thank God it is not written there.
It is true, that whatever, powers are not delegated to Congress, or prohibited to the States, are reserved to the States respectively. But what powers are prohibited to the States. There are many; and I will give two of them:
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

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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.

There are about eight or ten more prohibitions; either of which, if enforced upon the States would destroy it, by taking out its underpinning, and letting it fall by its own weight. Let it be remembered, that whatever Congress can do against slavery, the North can do through Congress; whether directly or indirectly. The free States have forty-nine members, I believe, more than the slave States, so that we can spare twenty-four votes for slavery, and then have a majority in the house; and we have half of the senators, besides the power to choose the vice president, who gives the casting vote, and therefore the North are mainly responsible for what Congress has the power to do.
Let us inquire what powers are given to Congress.
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-

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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
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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.

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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.

Let an abolitionist, (though he be a white citizen,) go into South Carolina, and senator Preston will hang him. And if Senator Hale goes into Mississippi, senator Foote will hang him, if he can, to punish him for hanging him in the Senate with a string of arguments. Let the Hon. Mr. Hoar, go on an embassy of justice, and how is he treated? Let our free colored citizens step across the line of Maryland, and they must pay a fine of twenty dollars for the first offense, and for the second, five hundred dollars; half of which goes to the complainant, and is a great temptation to rogues to take them up; and the other half goes to that tyrannical Maryland Colonization Society, and is a great temptation to them to countenance this superdiabolical iniquity. If in either case they cannot pay the fine, they must be sold as slaves for life.
In 1841, when I was lecturing on slavery, and acting as a kind of anti-slavery colporteur, in Philadelphia city, I saw in a shop, about a middle-aged colored man (I should-think) weeping. An abolitionist, (Samuel Webb by name,) asked, what is the matter? He replied, "my wife is in prison in Maryland for the second time, and unless I can raise five hundred dollars, she must be sold & slave for life." Said Mr. Webb, the sum is so great and there are so many such cases, it is a hopeless case. Then with a heart breaking with anguish, and a bosom heaving with emotions, that none but he could know; a new torrent of tears gushed from his eyes, rolled down his ebon cheeks and glistened in the sun, as he replied; then all I can do, is, to give her up into the hands of God,—farewell gentlemen, and he went out. Never shall I forget the heart-rending scene. O! I felt nerved up, to more than mortal energy, to preach deliverance to the captives.
All the power of the army and navy ought to be employed, if necessary, to break up these dreadful violations of the constitution, and the North, through Congress, can do it. And do they not perjure themselves by refusing do it? If they would thus enforce the constitution, it would make the old babel tremble, and perhaps totter to its fall. Indeed, if it cannot stand without such flagrant violations of the constitution, it ought to be overthrown on that account. If instead of being the mere moral acts of tyrannical free moral agents, they were so many bricks; making it as tangible as babel of old, the Almighty
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would, by lightning or earthquake, dash it to the ground. There are three clauses in the constitution that are claimed as compromises.
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

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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.

Mr. [Henry] Clay said, the slaves are worth twelve hundred millions, which is more than all the real money in the world. So the masters are keeping all this property from the rightful owners—the slaves. Dr. Nelson, a former slaveholder said, the slaves upon an average pay for themselves, once in six years. Now if we allow them an average of twelve years of labor, (which is low enough,) they have cancelled Mr. Clay's unjust claim and brought the masters into debt, twelve hundred millions more: which, if they would pay, would give them a fine setting out, and enable them, at least for a time to take care of themselves.
Ed. Note: See background on reparations.

But we do not ask them [slavers] to pay the debt [back wages, to slaves]. We do not even ask Clay, Polk, Taylor, and Tyler too, to pay their washerwomen, whom they have meanly cheated out of all their earnings all their days. We only ask the gospel principle, [Acts 8:4]cease to do evil and learn to do well; and may God and the slave forgive the rest.
But to return to the subject. Suppose slavery to be legal in any one State, (though it is not, and never was,) if the slave gets a millionth part of an inch over the line, the local law ceases to govern him, and he is under the protection of the broad wing of the constitution, that recognizes him as a person, and not as property. And you may as well take me, or any other person into slavery, as that person.
I rejoice therefore, that this clause harmonizes with the law of God, which says "thou shall not deliver to his master, the servant that is escaped unto thee [Deuteronomy 23:15-16];" which shows conclusively, that they had no involuntary servitude among the Jews; for if a servant did not choose to stay with his master, he might escape and none should deliver him to his master again.
Ed. Note: Correct. Contrary to pro-slavery mythology,
the Hebrews did not have, did not allow, slavery.

If any say, that the judges must decide whether these views are correct or not,—I answer, there is a power in the nation, higher than the judges; for, "we the people," can judge the judges, and if we judge that they do not judge right, we can appoint a president and senate,
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that will impeach them, and turn them out for bad behavior; for no behavior can be worse than to pronounce a man a thing and thus rob him of himself and all his rights, without fault; and do it in the name of law. Sitting to judge men after the law, and commanding them to be smitten contrary to the law; as the High Priest did Paul [Acts 23:2-5].
They [bad judges] can also be put into another office, if they will accept it, and anti-slavery judges be appointed in their stead; or if the president and senate can not do either, the Lord will help them, by killing off the old ones, so that better men may take their places, that will judge righteous judgment [[John 7:24], and execute judgment between a man and his neighbor [[Jeremiah 7:5]. So where there is a will, there is a way; and there are more ways to the wood than one.
The conclusion of the whole matter is, that if the majority become right, they will make the right kind of judges and officers in the administration, in all its departments; and then, where is your legal slavery? Gone! gone, like the baseless fabric of a vision. And the people will wonder then, at their present wickedness and folly, as they wonder now, at the folly of the Salem witchcraft, or the consummate wickedness of moderate rum drinking, or selling alcohol as a beverage.
I have presented ten leading arguments, with a variety of reasons for each, running back to the constitution, to prove slavery illegal from first to last. Again,
1st. I have shown that the constitution does not, guaranty slavery, but its indirect overthrow.
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.

So here are seven things, that the constitution does not do to make it legal.
I have stated that there are ten or twelve prohibitions to the States, and either of them, enforced, would overthrow this strong-hold of Satan. Two of which, I gave for examples, viz;
the bill of attainder, and
the law impairing the obligation of contracts.

I have shown slavery to be unconstitutional, because the slaves are persons deprived of their liberty without due process of law; and have given twelve different ways, for Congress to overthrow this tall Bohan Upas, either directly or indirectly, besides several things that can be done by the supreme court to upset a part or all of it.
There is another way to overthrow it, by the concurrence of the nation and the States, on a plan that I have proposed, in a petition to Congress.*
If any desire more light on this subject, let them consult Walter Mellen, Wm. Goodell and lawyer Spooner, on the unconstitutionality of slavery.
Walter Mellen [1841], 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 [1845], in a large pamphlet, gives a good common sense view of the subject.
Mr. Spooner's work [1845] is a legal, logical view of the same, and adapted to professional men: Price, twenty-five cents.
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^* By part pay to such as suffer a loss.
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.

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FOR FURTHER READING
Shaw's "Constitutional Abolitionists" Lecture
Slavers' 1837-1839
Testimony of Slavery Conditions
Anti-slavery Lawsuit,
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
Peoria Speech
E. Rogers' 1855
Unconstitutionality of Slavery
Radical Abolitionists' 1855
Convention Proceedings
F. Douglass' 1860
Unconstitutionality of Slavery
Republican Platform (1860)
C. Sumner's 1860
Barbarism of Slavery
H. Wilson's 1877
History of Slavepower
Homepage

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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