CONGRESS, U. S. 



263 



illustration that our fathers ' buiklod wiser than 

 they knew.' 



'' -i. But, independent of the clause of guar- 

 antee, there is the clause just quoted, which in 

 it-elf is a source of power: 'no person shall be 

 deprived of life, liberty, or property without 

 due process of law.' This was a part of the 

 amendments to the Constitution proposed by the 

 First Congress, under the popular demand for 

 a Bill of Eights. Brief as it is, it is in itself 

 alone a whole Bill of Eights. Liberty can be 

 lost only by 'due process of law,' words bor- 

 rowed from the old liberty-loving common law, 

 illustrated by our mast er-in-law, Lord Coke, but 

 best explained by the late Mr. Justice Bronson, 

 of New York, in a judicial opinion where he 

 says : 



The meaning of the section then seems to be, that 

 no member of the State shall be disfranchised or de- 

 prived of any of his rights or privileges unless the 

 matter shall'be adjudged against him upon trial had 

 according to the course of common law. The words 

 " due process of law" in this place cannot mean less 

 than a prosecution or suit instituted and conducted 

 according to the prescribed forms and solemnities for 

 ascertaining guilt or determining the title to proper- 

 ty. i HiWs Reports, 146. 



"Such is the protection which is thrown by 

 the Constitution over every ' person,' without 

 distinction of race or color, class or condition. 

 There can be no doubt about the universality 

 of this protection. All, without exception, 

 come within its scope. Its natural meaning is 

 plain; but there is an incident of history which 

 makes it plainer still, excluding all possibility 

 of misconception. A clause of this character 

 was originally recommended as as amendment 

 by two slave States, North Carolina and Vir- 

 ginia, but it was restrained by them to free- 

 men, thus : ' No freeman ought to be deprived 

 of his life, liberty, or property but by the law 

 of the land.' But when the recommendation 

 came before Congress the word ' person ' was 

 substituted for 'freemen,' and the more search- 

 ing phrase ' due process of law ' was substituted 

 for 'the law of the land.' In making this 

 change, rejecting the recommendation of two 

 slave States, the authors of this amendment 

 revealed their purpose, that no person wearing 

 the human form should be deprived of liberty 

 without due process of law ; and the proposi- 

 tion was adopted by the votes of Congress and 

 then of the States as a part of the Constitution. 

 Clearly on its face it is an express guarantee 

 of personal liberty, and an express prohibition 

 against its invasion anywhere. 



" In the face of this guarantee and prohibi- 

 tion for it is both how can any ' person ' be 

 held as a slave ? But it is sometimes said that 

 this provision must be restrained to places 

 within the exclusive jurisdiction of the na- 

 tional Government. Let me say frankly that 

 such formerly was my own impression, often 

 avowed in this Chamber ; but I never doubted 

 its complete efficacy to render slavery uncon- 

 stitutional in all such places, so that ' no per- 

 son ' could bo held as a slave at the national 



capital or in any national territory. Constitu- 

 tionally slavery has always been an outlaw 

 wherever that provision of the Constitution 

 was applicable. Nobody doubted that it was 

 binding on the national courts, and yet it was 

 left unexecuted a dead letter, killed by the 

 predominant influence of slavery, until at last 

 Congress was obliged by legislative act to do 

 what the courts had failed to do, and to put an 

 end to slavery in the national capital and na- 

 tional territories. 



" But there are no words in this guarantee 

 and prohibition by which they are restrained 

 to any exclusive jurisdiction. They are broad 

 and general as the Constitution itself; and 

 since they are in support of human rights they 

 cannot be restrained by any interpretation. 

 There is no limitation in them, and nobody 

 now can supply any such limitation, without 

 encountering the venerable maxim of law, Im- 

 pius ac crudelis qui libertati non favet 'Im- 

 pious and cruel is he who does not favor liber- 

 ty.' Long enough courts and Congress have 

 merited this condemnation. The time has 

 come when they should merit it no longer. 

 The Constitution should become a living letter 

 under the predominant influence of freedom. 

 It is this conviction which has brought peti- 

 tioners to Congress, during the present session, 

 asking that the Constitution shall be simply 

 executed against slavery and not altered. Ah ! 

 sir, it would be a glad sight to see that Con- 

 stitution, which we have all sworn to support, 

 interpreted generously, nobly, gloriously for 

 freedom, so that everywhere within its influ- 

 ence the chains should drop from the slave. If 

 it be said that this was not anticipated at the 

 adoption of the Constitution, I remind you of 

 the words of Patrick Henry at the time when 

 he said, ' the paper speaks to the point.' No 

 doubt. It does speak to the point. Cicero pre- 

 ferred to err with Plato rather than to think 

 right with other men. And pardon me if, on this 

 occasion, when my country is in peril from 

 slavery, and when human rights are to be res- 

 cued, I prefer to err with Patrick Henry, the 

 contemporary of the Constitution, rather than 

 to think right with Senators who hesitate 

 against slavery. 



' Mr. President, thus stands the case. There 

 is nothing in the Constitution on which slavery 

 can rest, or find any the least support. Even 

 on the face of that instrument it is an outlaw ; 

 but if we look further at its provisions we find 

 at least four distinct sources of power, which, 

 if executed, must render slavery impossible, 

 while the preamble makes them all vital for 

 freedom: first, the power to provide for the 

 common defence and general welfare ; second- 

 ly, the power to raise armies and maintain na- 

 vies ; thirdly, the power to guarantee to every 

 State a republican form of government; and 

 fourthly, the power to secure liberty to every 

 person restrained without due process of law. 

 But all these provisions are something more 

 than powers; they are duties also. And yet 



