A Defence of Virginia. Robert Lewis Dabney
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jealous of those which possessed such regions, and especially of Virginia. They feared her ulterior grandeur and power. But their expressed plea was, that she, and other States possessed of vacant lands, could pay their share of the common war debt, without taxation, by the sale of these lands, which, as they claimed, were the fruits of the common exertions of the States, while the others would be subjected to an onerous taxation. The North-west Territory had, in fact, been won by Virginia, with her own bow and spear; but at the request of the Congress of the Confederation, she magnanimously laid the splendid prize upon the altar of the common cause, ceding it in 1784 to Congress, for the common behoof of the United States. The Congress of the Confederation passed a long enactment, known as the Ordinance of 1787, providing, in many articles, for its settlement, for its government while a territory, and for the sale of lands. Among these was a clause prohibiting slavery in it. But meantime, the Confederation was superseded by the general government organized under the new constitution of 1787. The first Congress during the administration of General Washington, acting under the article of the constitution already cited for taking and managing the "territory and other property" of the Confederation, passed an act, (August 7th, 1789,) for putting in effect the Ordinance of the Congress of the Confederation, now extinct.
Such is the history of the case. The inference of the objector is, that because the Congress of 1789, acting under the late constitution, claimed power to execute the ordinance of 1787, (passed by the previous and different general government,) with its anti-slavery clause included, therefore that constitution gave it power to exclude slavery from any other territory. But the inference is worthless. For, first, the Congress of the old Confederation had not a particle of constitutional power to adopt such an anti-slavery clause. So declared Mr. Madison emphatically:[66] and so has decided the Supreme Court of the United States.[67] Both these high authorities declare, that if the clause had any validity, it derived it only from the assent of Virginia, who had full sovereignty over the territory, and who accepted and ratified the exclusion by act of her General Assembly, as well as by the mouths of her representatives in the Confederation. And the Congress of 1789, in accepting the conditions imposed by the Ordinance of 1787 on the territory, as valid and abiding, undertook to change nothing, because it regarded that validity as the result of treaty stipulations between Virginia and the other twelve States represented by the old Congress. It conceived itself as having inherited from a previous and different government powers over this particular territory, which it could by no means have originated by its own constitutional authority.[68] Second: The government framed under the new constitution was one of limited powers; and Congress was expressly inhibited, by the instrument which created it, from exercising any authority not granted. But such a power as that to exclude citizens of any of the United States from the common territory, because they proposed to carry there property legalized both by the Constitution of the United States and of their own State, was not granted to Congress. That a government whose very foundation was the equality of the States, should thus attempt to disfranchise some States of a part of their rights, was a solecism too monstrous for these able and enlightened men. Third: When similar cessions of territory were afterwards made by North Carolina and Georgia, these States refused to Congress the privilege of appending to their laws touching these lands, the exclusion of slavery; and Congress obeyed, so framing their enactments as to admit and protect slave-owners. This proves that the exclusion derived its force from the consent of the Sovereign State, and not from the power of Congress.
The third ground of objection which has been advanced against our main proposition, is the doctrine said to have been decided by the Supreme Court of the United States, (as in the case of Prigg against the State of Pennsylvania,) that according to recognized international laws, a nation which does not hold slaves itself is not bound to recognize property in slaves in neighbouring nations, when those slaves come into its borders; and that if a rendition is claimed, it must be asked of comity, or of special stipulation, and not as of international right. The answer is clear and facile. The States of the American Union were, initially, as independent nations to each other; and then they were all slaveholding. Each one of them recognized in its own citizens the right of property in slaves; and therefore, if the above doctrine be granted, they could not then, by international law, refuse to recognize it in nations living at amity with them. Again: When they passed out of this condition of absolute independence, into that of federal union, their relations, so far as they ceased to be international, were regulated exclusively by the constitution; and by this constitution the property in slaves was expressly recognized, the rendition of fugitive slaves was expressly required of all the States, whether themselves holding slaves or not; and all the common territory of the Union was originally slave territory until it became free territory by sovereign State action. Plainly, in such a case as this, the international law of Europe has no application, against historical facts and actual constitutional enactments. The sophism of this plea in the mouths of anti-slavery men, the uniform assertors of consolidation doctrines, would make the States, in the same breath, independent nations, in order that the international law of a different hemisphere may be applied against them, and also subject provinces of an anti-slavery nation, in order that they may be stripped of that equality of rights, belonging to sovereign constituent parties in a confederation.
CHAPTER IV.
HISTORY OF EMANCIPATION.
The motive for introducing the historical facts contained in this chapter is the following: That the credit of Virginia as a slaveholding State is relatively illustrated by the conduct of her partners in the confederation touching the same matter. Virginia never passed a general act of emancipation; on the contrary, she forbade masters to free their slaves within her borders, unless they also provided for their removal to new homes. But what was it which the Northern States actually did? The general answer to this question cannot be better given than in the words of the Hon. A. H. H. Stuart of Virginia, in his Report to the General Assembly, as chairman of its joint committee on the Harper's Ferry outrages. He says:
"At the date of the declaration of our national independence, slavery existed in every colony of the Confederation. …
"Shortly after the Declaration of Independence, the Northern States adopted prospective measures to relieve themselves of the African population. But it is a great mistake to suppose that their policy in this particular was prompted by any spirit of philanthropy or tender regard for the welfare of the negro race. On the contrary, it was dictated by an enlightened self-interest, yielding obedience to overruling laws of social economy. Experience had shown that the African race were not adapted to high northern latitudes, and that slave labour could not compete successfully with free white labour in those pursuits to which the industry of the North was directed. This discovery having been made, the people of the North, at an early day, began to dispose of their slaves by sale to citizens of the Southern States, whose soil, climate, and productions were better adapted to their habits and capacities; and the legislation of the Northern States, following the course of publick opinion, was directed, not to emancipation, but to the removal of the slave population beyond their limits. To effect this object, they adopted a system of laws which provided, prospectively, that all slaves born of female slaves, within their jurisdiction, after certain specified dates, should be held free when they attained a given age. No law can be found on the statute-book of any Northern State, which conferred the boon of freedom on a single slave in being. All who were slaves remained slaves. Freedom was secured only to the children of slaves, born after the days designated in the laws; and it was secured to them only in the contingency that the owner of the female slave should retain her within the jurisdiction of the State until after the child was born. To secure freedom to the afterborn child, therefore, it was necessary that the consent of the master, indicated by his permitting the mother to remain in the State, should be superadded to the provisions of the law. Without such consent, the law would have been inoperative, because the mother, before the birth of the child, might, at the will of the master, be removed beyond the jurisdiction of the law. There was no legal prohibition of such removal, for such a prohibition would have been at war with the policy of the law, which was obviously removal, and not emancipation. The effect of this legislation was, as might have readily been foreseen,