FEDE AL GOVERNMENT
SLAV ERY!
BY ANDREW J WILCOX.
BALTIMORE:
1862.
~~~~~~~~~~~~~~~~~ -.,.1           I             f             11e
OF THE
OVER
, l 0..
,. 
Entered according to the Act of Congress, in the vear 1862,
BY ANDREW J. WILCOX,
In "he Clerk's Office of the District Court fo the District of Maryland.
*L
/
- { -I
i 
THE POWERS
I; a former publication, a Remedy for the Defects of the Constitution, I endeavored to show what power the Government had
over the subject.of slavery, as granted to it by the people, in the
particular clauses of the Consmtitution, bearing on that subject.
Since then, the President has issued his proclamation; the
first four and last paragraphs of which is in the words following:
"1, Abraham Lincoln, President of the United States of
America, and Commander-in-Chief of the Army and Navy therel-, do hereby proclaim, that hereafter, as heretofore, the war will
be prosecuted for the object of practically restoring the Constitutional relations between us and the people thereof, in which
States that relation is or may be suspended or disturbed,"
"That it is my purpose, upon the next meeting of Congress,
to again recommend the adoption of a practical measure, tendering pecuniary aid to the free acceptance or rejection of all the
Slave States, so called, the people whereof may not be in rebellion against the United States, and which States may then
be in rebellion against the United States, and which States may
then have voluntarily adopted, or thereafter may voluntarily
adopt, immediate or gradual abolishment of slavery within
their respective Cities, and that the efforts to colonize persons
of African descent, with. their consent, upon this Continent or
elswhere, with the previously obtained consent of the Governments existing then will be continued."
OF THIR
, 0
. I 
4
" That on the first day of January in the year of ovr Lord one
thousand eight hundred and 8ixty-three, allpersons held as slaves
within any Stctt or designated art of a State, the people whereof
shall then be in rebelldtion against the United States, shall be thenceforwvard and forever free; and that the Fxecutive Government of
fthe United States, including the military and naval authority
thereof, will recogonize and maintain the freedom of such persons.
and will do no act or acts to repress such persons, or any of them,
in any eforts that they may make for their actual freedom."
'hat the Executive will, on the 1st day of January aforesaid,
by proclamations, designate the States and parts of States, if any,
int which the peopale thereof respectively shall then be in rebellion
against the Urzttea' States; and the fact that any State or people
thereof shall, ),n that day; be in good faith represented in the
Congress of the United States, by members chlosen thereto at
elections wherein a majority of the qualified voters of such
States shall have participated, shall, in the absence of stronDg
counteracting testimony, be deemed conclusive evidence that
such State, and the people thereof; are not in rebellion against
the United States; that attention is hereby called to an act of
Congress, entitled "An Act to make an additional Article of
War," approved March 13th, 1862, &c.
Then follows a paragraph containing the Article of WVar providing for the non-return of fugitive slaves, those sections of the
Confiscation Act which hold out inducements for negroes to become fugitives from their masters  and another, saying that the
"Executive w!i, in due time, recommend that all citizens of
the United States, who shall have remained  loyal thereto
throughout the rebellion, shall, upon the restoration of the
constitutional authoritv between 4he United Stab.es and their respective States and peo?le-if the relations sh-all have been suspended or disturbed, be compensated for all1 losses by acts of the
United States, including the loss of slaves.'
I shall take it for granted, that our Constitution was made for
all contingencies, at least for a contingency like the present.  In
the preamble it is said, that the Constitution was "ordained and
established to form a more perfect Union, establish justice, insure 
6
domestic tranquil~ty, provide for the common defence, promote the
general welfare," &c.
This language is either false, or the idea that the Constitution
was not intended to meet a case likle the present, and that the
lex necessitate must govern is false.
Although the President does not say by virtue of'what au thority he issues this proclamation, and although hle does not
even say that it was done by virtue of any authtority, yet, I
presume, it was intended to have been issued constltttionally,v
and under the 1st clause of the 8th section of the Ist article, in
these words; "To lay and collect taxes, duties, imposts and excises; to pay the debts and provide for the common defence and
general welfare of the United States; but all duties, imposts and
excises shall be uniform throughout the United States."
This power was granted by the people to the Cong(ress, and
not the President of the United States.  The precise words use,
are "that the Congiress shall hlave power to lay and collect taxes,',
&c.  The first question that would arise is: Can Congress delegate powers granted to it by the people to an.other%ranch of the
government?  On this question Ido niot think there can possibly
be any difference of opinion, but will suppose that it could, then
then the question would arise:- Has it done so?  This must be
answered in the negative.  But 1 will again make the supposition, that Congress will legalize the acts of the Presidenit, then
the question would arise: Has Congress the power, undei this
clause, to emancipate slaves?
On-this point, Patrick Henry, in the Virginia Convention;
said that "With respect to that part of the proposal, which says
that'every power not granted remains with the people, it must
be previous to adoption or it will involve this country i; inevitable destruction.  To talk of it as a thing subsequlent; not as
one of your inalienable rights; is leaving it to the casual opinion
of the Congress who  shall take up  the consideration' of that
matter.  They will not reason with you about the effect of this
Constitution.  Thev will not take the opinion of this committee
concerning its operation.  They will construe it as as they
please.  Ifyou place it subsequently,-  let me ask the conse
t 
a
quences.   Amnong ten thousand implied powers which they may
assume, they may, if we be engaged in war, liberate every One.
of your slaves if they please, and this must and will be done by
men, a majority of whom have not a common interest with you."
"They will therefore have no feeling for your interests. It has
been repeatedly said here, that the great object of national Government was national defence.  That power which is intended
fo?r security and safety, may be rendered detestable and oppressive.  If they give powers to the General Goveroment to provide
for the general deibnce, the means must be commensurate to the
end.  All the mleans in the possession of the people must be
given to the Government, which is entrusted with the public
defence. In this State there are 236,000 blacks and there are
many in several other States. But there are few or none in the
Northern States, and yet if the Northern  States shall be of
opinion that our number are numberless. They may call forth
every national resource."
':fay Congress.not say that every black man must fight. Did we
see a little ofhtis last war? we were not so hard pushed as to
make emancipation general. But acts of assembly passed that
every slave who would go to the army should be free, another
thing will contribute to bring this event about. Slavery is de tested.  WVe feel its fatal effects.   We deplore it with all the
pity of humanit?.  Let all these considerations at some future
period press with full force on the minds of Congress.   Let that
urbanity. which I trust will distinguishi America, and the ne dessity of national defence; let all these things operate on their
minds they will search that paper and see if they have powtver of
manumission. And have they not Sir? have they not power to
provide for the general defence and welfare?  May they 2iot think
that these call for the abolition of slavery?  May they not pronounce
all slaves free, and will they not be warranted by that power?
There is no ambigous implication or logical deduction. The
paper speaks to the point.  They have the power in clear un equivocal terms and will clearly and certainly exercise it. A4s much
as I deplore slavery, I see that prudence forbids its abolition. I
deny that the general Government ought to set them free, be 
'easl a decided - majority or'the States' have not the ties of
sympathy, and fellow feeling for those whose interests would be
affected by their emancipation.   THe  majority of Congress is
to the north, and the slaves are to the south.'
"Ih this situation, I see a great deal of the property of the
people of Virginia in jeopardy, and their peace and tranquility
gone.  I repeat it again that it would rejoice  7-,y very soul that
every one of my fellow beings was emancipated. As we ought with
gratitude to admire that decree of 4eaven, which has remembered
us among the free, we ought to lament and deplore the necessity
of holding our fellow men in bandage. But is it practicable by
any h?uman means to liberate them without producing the most,
dreadful and ruinouts consequences?  We ought to possess them
in the manner we inherited them from our ancestors, as their
manumission is incomparable tvith thefelicity of ovr Country. But
we ought to soften, as much as possible the, rigor of their unhappy fate.  I know that in a variety of particular instances,
the legislature, listening to complaints, have admuitted their
emancipation.  Let me not dwell on this subject.  I wi]l only
add that this as well as every other property of the people of
Viginia, is in jeopardy and put in the hands of those who have
no similarity of situation with us.  This is a local matter and I
can see no propriety. in subjecting it to Congress."
"With respect to subsequent amendments proposed by the worthy member I am distressed when I hear the expression. It is
a new one altogether, and such a one as stands against every
idea of fortitude and manliness in. the States, or any one else.
Evils admitted in order to be removed subsequently, and tyranny submitted to in order to be excluded by subsequent alteration
are things totally new to me."
Elliot's Debates on Fed. Constitution, page 533.
It will be remembered, that Patrick Henry was one of the most
violent of the opponents of the Constitution; and on this occasion, being his last speech before the question was put to the
House, used all the rhetorical and logical powers of which he
was capable, in making the strongest possible case against the
Constitution, so that he may be considered as a prejudiced witness.
-7
ol 
8
The principal question in all the conventions was on the d-ivision of powers, between the State and Federal' government.
Tile friends of the Constitution claiming, as we shall hereafter
see, that (even without the amendments,which have since been
made, particularly the 9th and 10th here referred to) the- government was one of limited powers; that only such powers
as were enumerated were intended to be granted, and that these
powers could not be enlarged upon.  Whilst the opponents of
thie Constitutioii, among the most formidable of whom was Patrick Henry, denied this position, and said, that the Constitution, especially this and the 18th clause of this section and article, granted to the government unlimited powers, and would
effect a consolidation of the States. Patrick Henry, in this speech
says, that if that part of the system, "which says that every
power not granted remains with the people," would be inserted,
previous to the adoption of the Constitution, it would then be
satisfactory even to those who agreed with him, and that the
general government would not be able to assume any implied
p)owers, which they would do, (even if the Constitution did
not warrant the assumption) as it then was, and Congress could
not then imply any power, under the power of providing for
the general defence in time of war, to emancipate slaves.  It
was not the time Cohen the amendments should be made, that
would prevent the general government from using this unlimited power, but it was the amendments themselves. Although
this very amendment had been proposed by nearly all the con ventions of which we have the proceedings, and which sat
prior to Virginia, yet it was repeatedly said, in the Convention
of that State, that these amendments never would be made.
Another point here made was that although Patrick Henry de plored slavery, and that it would rejoice his very soul to see all
slaves emancipated, yet he thought it was not practicable by any
human means to liberate them without producing the most dread ful and ruinous consequences, would be altogether incompatable
withl felicity of the country, and being a local matter, in subject ing it to Congress under the Constitution, as it then was, would
be submitting to tyranny in order to afterwards exclude it by
subsequent alteration. 
'9
Gov. Edmund Randolph, also a member of the Virginia Convention, in reply to Patrick Henry said, that. "'That honorable gentlemen and some others have insisted that the abolition
oi- slavery will result from it, and at the same tihte have complained(t that it encourages its continuation.
The inconsistency proves, in some degree, the futility of their
arguments. But if it be not conclusive, to satisfy the committee,
that there is no danger of enfranchisement taking place, I beg
leave to refer them to the paper itself. I lhope that there is none
here who,  considering the subject in the calm light of philosophy, will advance an objection dishonorable to Virginia; that
at the moment they are securing the rights of their citizens, an
objection is started that there is a spark of hope that  those
unfortunate men, now held in bondage, may, by the operation
of the General Government, be made free. But ifany gentleman
obe erried by this agprehension let him read the system. I ask and
f will ask again and again till I be answered, (not by declamation)
where is the part that has a tendency to the abolition of slavery?
Is it the clause which says that "thie migration or importation
of such persons as any of the States now existing shall think
proper to admit, shall not be prohibited by Congress prior to
the year 1808."  This is an exception from the power of regulating commerce, and the restriction is only to continue till
1808. Then Congress can, by the exercise of that power, prevent future importations; but does it affect the existing state of
slavery? Were it right here to mention what passed in convention
on the occasion, I might tell you that the Southern States, even
South Carolina herself, conceived this property to be secure by
these words.  I believe whatever we may think here that there was
not a member of the Virginia delegation who had the smallest suspicion of the abolition of slavery.  Go to their meaning   Point
out the clause where this formidable power of emancipation is
inserted."
"But another clause of the Constitution proves the absurdity
of the supposition. The words of the clause are, "no person
held to service or labor in one State, under the laws thereof; escaping into another, shall in consequence of any law or regula 
10
tion 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." Every one knows that slaves are held to service and labor. And when authority is given to owners of slaves
to vindicate their property, can it be supposed they can be deprived of it? If a citizen of this State, in consequence of this
clause, can take his runaway slave in Maryland can it be serious1, thought that after taking him and bringing him home he
could be made free?"
"I observed that the honorable gentleman's proposition came
in a truly questionable shape, and is still more extraordinary and
unaccountable for another consideration.   That although we
went article by article through the Constitution, and although we
did not expect a general review on the subject, (as a most comprehensive view had been taken of it before it was regularly debated,)
yet we are carried back to the clause giving that dreadful(?)power
tor the general welfare. Pardon me if Iremind you of the true state
of that business. I appeal to the candor of the honorable gentlemen, and if he thinks it an improper appeal, I ask the gentleman
here whether there be a general indefinite power of providing for
the general welfare? The power is to lay and collect taxes, duties, imposts and excises; to pay the debts and provide for the
common defenice and general welfare.'So that they can only
rise molnevy I)v. these means in order to provide for the common
defencte and general welfare.  No man who reads it, can say it
is general, as the honorable gentleman represents it.  You must
violae every rtib of construction and common sense if you sever it
from the power of raising money and annex it to azy thing else in
order to Anake it that formidable power which it is represented to
)&."-(Ibid, 3rd vol., page 541.)
Gov. Randolph was not only a member of the Flderal Convention, in which the Constitution was adopted, but it was
on the basis ol his resolutions principally framed.  If it can be
supposed that any one understood what it was intended that the
C-onstitution should mean, it certainly was he.  He does unequivocally say, in this speech, that not only lie, but every member in the Convention from the Southern States, fully under 
11
stood what the intention of those were who framed the Constitution, in regard to the subject of slavery. His words are that
"were it right here to tell what passed in Convention, (Federal)
on the occasion, I might tell you that the Southern States, even
South Carolina herself, conceived this property to be secure by these
wiords." Again, "I believe, whatever we may think here, that
there was not a member of the Virginia delegatiou who had the
smalles( suspicion of the abolition of slavery." The italics here are
his own.  This seems to favor the idea that this clause in respect
to the "migration or importation of such persons as any of the
states then existing should think proper," was regarded as a
sacred compromise, on  which  the slavery question  should
forever rest. But irrespective of all compromises and private
understandings, he goes to the law as laid down in the Constitut'i, and asks Patrick Henry and his friends to "point out the#
clause where this formidable power of emancipation is inserted."
"Where is the part that has a tendency to the abolition of slavery? He does not wish to be answered by declamation either.
A conclusive answer that no such power resides in the government, was the clause before quoted in respect to the migration
or importation of slaves.  But if that is not sufficient to prove
the absurdity of the supposition, he quotes the clause, "that no
person held to service or labor in one State, under the laws thereof, escaping into another, ehall 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 may be due."  For fear that it may be misinterpreted, as
is now frequently done, he declares that every one knows that
the terms held to service or labor was intended to mean slaves.
Again, least his silence on the clause which provides fpr the
general welfare should be taken as an admission of Patrick
Henry's declaration, whom he accuses Of endeavoring to get a
snd.ap judgment against him, he states what the convention understood was the meaning of the clause.  He says, "pardon me if
I remind you of the true state of that business. I appeal to the
candor of the honorable gentleman, and if he thinks it an improper appeal, I ask the gentleman here, whether there be a
general indefinite power of providing for the general welfare?'. 
The power is, "to lay and collect taxes, duties, imposts and
excises to pay the debts and provide fob the common defence and
general welfare." Why should the provision to provide for
the common defence and general welfatre be connected with that
to raise taxes;- &c?.  The opponents to the Constitution on all
occasions declared that if this Constitution was adopted that all
debts of the United States, both foreign and domestic, which
had accumulated under the articles of confederation. would be
repudiated, which would bring on another foreign war. This
clause gives tile power to raise the money to pay the debts,
which. if not satisfactory to foreign nations and they will war
with us, we will provide for the general welfare by applying
this money for self defnce. "So that they can only raise money
by these meanis." To sever it (the power to provide for the conmmon defince and general welfare) from  the power of raising
money, and annex it to anything else, especially to the power to
abolish slavery, in order that, the war power would become
the more formidable, as Patrick Henrv represented, it would
be, "every rule of construction  and  common sense must be
violated. "   Ex-President Madison, also a member  of both
Federal and State conventions, on the same occasion, used the
following words, in reply to Patrick Henry, he said: "I was
struck with surprise when I heard him express himself alarmed
with respect to the emancipation of slaves.  Let me ask if they
should even attempt it, if it will not be an ursupatioli of power?
There is no power to warrant it in that paper.  If there be I
know it not.  But why should it be done? says the honorable
gentleman for the general welfare, it will infuse strength in our
system.  Can any member of thlis commi-ttee suppose that it will
increase our strength.? Can any one believe that the American
councils will come-into a measure which will strip tihem of there
property, discourage and alienate the affections of five thirteenths of the Union.  Why was nothing of this sort arrived at
before, I believe such an idea- never entered into-any American
breasts, nor do I believe it ever will enter into the heads of those
gentlemen who substitute unsupported suspicions for reasons."
Ibid page 561.
li ii 
1S
President Madison was of the opinion that even an attempt
to emancipate slaves, under the war power, would be an usur pation  of power  on  the part  of the  Government.   His
opinion is also valuable in respect to the' allegation that
emancipation will infuse strength into our system. The idea
is so nonsensical, as to cause him to put the interrogative,
"Can any member of this committee suppose that it will increase
our strength? The same question might now be asked and could
be practically more answered, that instead of its being a means
of strength to the Government, in the present contest, it has surevly been a means of weakness. It has divided the loyal and united
the disloyal. It has thrown upon the Government, for support,
man: thousands of contrabands who, it is said, do not earn
even their support under masters.
On another occasion, when the Cod fishery bill was before the
House of Represenatives, in the session of 1790, Jas. Madison,
on this particular clauseand the general theory of our Constitution said:  "I, sir, have always conceived, I believe, those
who proposed the Constitution conceived, it is still more fully
known and more material to observe. that those who ratified
the Constitution conceived, that this is not an indefinite government, deriving its powers from the generil terms prefixed
to the specified powers; but a limited government. tied down to
the specified powers which explain and define the general terms.
It is to be recollected, that the terms "common defence and
general welfare," as here used, are not novel terms, first'introduced into this Constitution. They are terms familiar in their
construction and well known to the people of American. They
are repeatedly found in the old Articles of Confederation, where,
although they are susceptible of as great a latitude as car?
be given them by the context here,'it was never supposed or
pretended that they conveyed any such powers, as is now assigned to them.  On the contrary it was always considerqd clear
and certain that the old Congress was limited to the enumerated powers, and that the enumeration limited andl explained
the general terms.  I ask the gentlemen themselves. whether it
it was ever supposed or suspected that the old Congress could 
14
give away the money of the States to bounties to encourage
agriculture, or for any other purpose they pleased?  If such
a power had been possessed by any body it would have been
much less important, or have borne a very different character
from that universally ascribed to it."'
"The novel idea now annexed to those terms, and never before
entertained by the friends or enemies of the government, will
have a further consequence which cannot have been taken into
the view of the gentleman."
"There are consequences, Sir, still more extensive which, as
they follow clearly from the doctrine combatted, must either be
admitted or the doctrine must be given up. If Congress can
employ money indefinitely to the general welfare, and are the
sole and supreme judges of the general welfare, they may take
the care of religion into their own hands;  they may appoint
teachers in every State, county and parish, and pay them out of
the public treasury, they may take into their own hands the
education of children, establishing in like manner schools
throughout the Union; they may assume the provision for the
poor; they may undertake the regulation of all roads, other
than post roads; in short every thing from the highest object of
state legislation down to the most minute object of police, would
be thrown tunder the power of Congress: for every object I have
mentioned would admit of the application of money and might
be called, if Congress pleased, provisions for the general wel fare. "
In short, Sir, without going farther into the subject, which I
should mo have touched at all but for the reasons already mentioned, I venture to declare it as my opinion, that were the power
of Congress to be established in the latitude contended for, it
would subvert the very foundation and transmute the very nature of the limited government, established by the people of
America; and what inferences might be drawn or what consequences ensue from such a step, it is incumbent on us all to
consider."
Mr. Williamson, on the same occasion said, that, "'the common defense and general welfare, in the hands of a good politi 
15
cian, may supersede every part of our Constitution and leave us
in the hands of time and clhance."-Ibid, 4th vol., pages 4367-8.
Mr. Wilson, in the Pennsylvania Convention, said, on the
theory of our government that; "A proposition to adopt a meas ure that would have supposed that we were throwing into the
general government every power, not expressly reserved by the
people, would have been spurned at in that house, -with the
greatest indignation, even in a single government, if the powers
of the people rest on the same establishment as is expressed in
this Constitution, a bill of rights is by no means a necessary
measure.' 
"But in a government, consisting of enumerated powers, such
as is proposed for the United States, a bill of rights would not
only be unnecessary, but, in my humble jndgment, highly im prudent.  In all societies there are many powvers and rights
which cannot be particularly enumerated.   A bill of rights
annexed to a constitution, is an enumeration of the powers reserved. If we attempt an enumerat'on, every thing that
is not enumerated is presumed to be given. The consequence
is, that an imperfect enumeration would throw all implied
power into the scale of government, and the rights of the people
would be rendered incomplete.  On the other hand, an imperfect enumeration of the powers of government, reserves all implied power to the people, and by that means the Constitution
becomes incomplete, but of the two, it is much safer to run the
risk on the side of the Constitution, for an omission in the
enumeration of the power of government is neither so dangerous
nor important, as an omission in the enumeration of the rights
of the people." Elliot's Deb., Fed. Con., 2 vol., page 4091.
Mr. McKean, on the same subject, in the Pennsylvania Convention, also said:  "Again, because it (a bill or declaration of
rights) is unnecessary, for the powers of Congress, being derived
from the people, in the mode pointed out by this constitution,
and being therein enumerated and positively granted, can be no
other than what this positive grant conveys." (Locke, on civil
government, vol. 2, B 2, chap. 2, sect. 140, and in the 13th
chap. sec 152.) 
,6
"With respect to executive officers, they have no manner of
authority, auy of them, beyond what is by positive grant and
commission delegated to them"-Ibid, page 498.
This opinion, supported by the authority of an eminent writer
on civil government, is conclusive in respect to executive officers, "the chiefest among whom" is the President of the United
States.
Alexander Hamilton, in the New York Convention, on this
same subject, said, that'The powers of the new government are
general, and calculated to embrace the aggregate interests of
the ('nion, and the general interest oi each State, so far as it
stands in relation to the whole. The object of the State governments is to provide for their internal interests, as unconnected
with the United States, and as -composed of minute parts- or districts."  (Ibid page 259.)
"Again it has been asserted, that the interests, habits and
manners of the thirteen States are different, and hence it is in ferred, tlat no general free government can suit them.  This
diversity of habits, &c., has been a favorite theme with those
who are disposed for a division of our empire, and like many
popular objections, seems to be founded on fallacy. I acknow ledge, that the local interests of the States are in' some degree
various, and that there is some difference in the manners and
habits. But this, I will presume to affirm, that fiom New
Hampshire to Georgia, the people of America are as uniform in
their interests and manners as these of any established in Eu rope. This diversity to the eye of the speculatist, may afford
some marks of characteristic discrimination, but can not form
an impediment to the regular operation of those general powers
which the Constitution gives to the United Government. Where
the laws of the Union to new model the internal police of any
State; were they to alter or abrogate, at a blow, the whole of
its criminal and civil institutions; were they to penetrate the re  cesses of domestic life, and control in all respects the private con  duct of individuals, there might be more force in the-objection,
and the same Constitution which was happily calculated for one
State, might sacrifice the welfare of another.  Though the dif 
i 7
ference of interests may create some difficulty and apparent par tiality in-the first operations of government, yet the same spirit
of accommodation, which produced the plan under discussion,
would be exercised in lessening the weight of unequal burthens,
add td this, that under the re-gular and gentle influence of gen eral laws, these varying interests will-be constantly assimilating,
till they embrate each other and assume the same complexion."
(Ibid page 261, &c.)
This speech was in answer to Gov. Clinton, who objected to
the Union and Constitution, on the ground that there would not
be sufficient safety in the general government. That by small
and gradual encroachments, which would not inspire a general
spirit of resistance, designs unfavorable to the institutions, of
the States could not be frustrated and punished. That the interests of the States was so dissimilar, that the laws made in
pursuance of the Constitution would operate most disadvantageously and cruelly upon all the States. The only great dissimilarity existing it the interests of the States, was in regard
to slavery, to which Alexander Hamilton replies; "Were the
laws of the Union to new model the internal police of any State;
were they to alter or abrogate at a blow the whole of its civil
and criminal institutions, there might be more force in the objections, and the same Constitution which was happily calculated for one State, might sacrifice the welfare of another."  How
far this may apply to the present time, let others determine.
On the 18th clause of the 8th section of the 1st article, (To
wit: "To make all laws which shall be necessary and proper
for carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the Government of the
United States, or in any department or officer thereof,") denominated the sweeping clause, and which must furnish all necessary
power for carrying into execution the powers of the Constitution,
Gov. Randolph, on another occasion, said, that "the sweeping
clause, as it is called, is much dreaded. I find that I differ from
several gentlemen on this point. This formidable clause does
not in the least increase the powers of Congress. It is only inserted for greater caution and to prevent the possibility of encroaching upon the powers of Congress.  No sophistry will be
3
-b 
permitted to be A rttyp explain'    a      yaStt'of'those powers', nor
can they possibly assume-any other power but what is contained
in the Constitution, without absolute usurpation.  Another
security is, that if they attempt such an usurpation the influence
of the State Governments will nip it in the bud of hope.  I
know this government will be cautiously watched.   The smallest assumption of power wili be sounded in alarm to the people
and followed by bold and active opposition.  I hope that my
countrymen will keep guard against every arrogation of power.
I shall take notice of what the honorable gentlemen said with
respect to the power to provide for the general welfare.  The
meaning of this clause has been perverted to alarm our apprehensions. The whole clausen has not been read together. It
enables Congress "to lay and collect taxes, duties, imposts and
excises; to pay the debts and provide for the common defence
and general welfare of the United States; but all duties, imposts,
and excises shall be uniform throughout the United States."
The plain and obvio'us meaning of this is,khat~ no more duties,
taxes, imposts and excises shall be'laid than are sufficient  to
pay the debts and provide for the common defence and general
welfare of the United States." (Elliott's debat  3rd vol. page
209, &c.). Here we have, in the plainest langua e, and the briefest space possible, the opinion of on-e whomay be called the
founder of our Constitution, on those important parts of the
Constitution which confer all, power to the Government.
William R. Davie, in the North Carolina- Convention, on
the subject of powers granted to the Federal  Government,
said "Mr. Chairman, permit me, Sir, to make- a few observations on the operation of the clause so often mentioned.
This Constitution, as to the powers therein granted, is constantly to be the suprme law of the  land.   Every power
ceded by it must be executed without being counteracted by the
laws or constitutions of the individual States. Gentlemen should
distinguish, that it is not the suprome law, in the exercise
of a power not granted. It can be suprte only in cases consistent with the powers specially granted,- ad- not. usurpations.
(Ibid 4th Vol., page 187.).
Chas. Pinckney, in the South Caroliti   nvttio,ts;i bd:b'The
t
M' 
distinction which has been taken, between the nature of the Federal and State Government appeared to be conclusive that in the
former no powers could be executed or assumed, but such as
were expressly delegated  that in the latter the indefinite power
was given to the government, except on points that were by express compact reserved to the people."
Charles Cotesworth Pinckney, in the same Convention, on
the question of slavery as settled by the Constitution, said:
that "By this settlement, we have secured an unlimited importation for twenty years, nor is it declared that the importation shall then be stopped. It may be continued, we have
a security that the general government can never emancipate them, for no such authority is granted, and it is admitted
on all hands, that the general government has no powers but
whan are expressly granted by the Constitution, and that
all rights not expressed were reserved by the several States.;
We have obtained a right to recover our slaves in any part
of America they may take refuge, which is a right we had not
before. In short considering all circumstances, we have made
the best terms for'the security of this species of property it was
in our power to make, we would have made better if we could,
but on the whole, I do not think them bad."-(Ibid page 277.)
If the President shall yet believe (as he did when writing his
inaugural) in that fundamental law maxim,  "that the intention of the lawgiver is the law" he will certainly believe, that
he can, under no necessity, derive any power from the Constitution to issue his proclamation, on the 1st of January A. D.
1863, emancipating slaves; or he must believe that the statesmen (herein quoted; all, with one exception, leading members
of both Federal and State Conventions, which adopted the Constitution, and who may  truly be termed the fathers of our
Constitution,) were speaking of that which they did not know.
In order that I may not appear to condemn that policy which
I cannot propose a remedy for, I shall here insert my letter of
July 21st, to His Excellency the President, which general orders
(in reference to employ'ng' the negroes as laborers, promulgated
a few days afterward) will show, was at that time approved ot
by him.:
it 
Baltimore, July 21st, 1862.
Mr. President:
I but avail myself of the privilege of an
American Citizen, when I address you concerning the conduct
of the war.  This war in the first place has been caused by the
agitation of the slavery question, in the National Councils, by
men of extreme views.  In the second place, we  lnever shall
have a permanent peace until th.e cause is destroyed.  A party
evidently largely in the minority. argue that slavery is the cause
of the agitation of the slavery question, and therefore the primary cause of the war, with equal force, itL may be said that the
existence of the negroes is the cause of slavery, and so on, until
the cause would be attributed to the Creator himself. We are
not now to deal with abstractions. This war is found to be too
much of a sad reality.  But it is not true that slavery is the
cause of tlle slavery agitation, it has existed in the nation since
its formation. Many States have both abolished and estaLblished
it, by State action, without even causing much agitation within
their own borders. It has only been sintce politicians and demagogues have discovereed the suitablenesss of thei subject, for the
purpose of man.ufacturing political capita], (it being about twenty odd years) that this agitation has assumed so great proportions and become  so acrimtnonius.  It is evident that the
that tle Natioin would meet.wit]:; as much success if it should
attempt to destroy thie Creator himself; and would cause
about as much distress, if it should attempt to destroy the negroes, (to either of which causes the war could be abstractly attributed,) as it would if it should attempt to destroy the agitation of thle slavery question, by destroying, or in other words,
abolishing slavery itself. Without fear of contradiction, I think
it can be safely said, that all past legislation, with a view to
that end, instead of decreasing has increased this agitation, at
a cost almost of the life of the Nation. Nor, do I want to be
understood to say, that to get rid of this agitation slavery should
be established everywhere. The attempt to establish slavery,
anywhere, by National legislation, would be frought with as
much agitation as the attempt to abolish it in certain places has
already been; but I do want to be understood to say, and I do
90 
21
say, that the only true policy to be pursued by the Nation is to
have nothing at all to do with the matter. The opposite policy
has been tried, in accordance with the views of each of the ex  tremes, and found wanting. If for nothing more than an ex  periment, it would now be well to let this matter alone. Besides,
being the only true policy, and the only one on which all loyal
men can be united under, it is of itself destroying the cause of
the war and is moreover the only legal and constitutional course
that can be pursued. By virtue of wrhat clause in the Constitu  tion, or what law in accordance therewith, has the administra  tion now power to do anything farther with the matter?
The only clauscs on which there possibly could have been anv
difference of opinion have been fully settled by Congressional
action.
The subject of slavery presents, legislatively, three different
phrases: first in relation to places where it is claimed that Con g,ress has exclusive jurisdiction, for all purposes. Secondly. in
relation to places where it is claimed that Congress has a super visory, amounting pratically to an exclusive jurisdiction; and
Thirdly, in relation to places where it is claimed that Congress
has concurrent jurisdiction, with the State legislatures. In
places of the first and second class the last congress were of the
opinion that they had power to legislate on the subject of slavery,
which they carried into practice, by abolishing it in those places;
whether this was in accordance with the Constitution it would
be (now that it is done) to no purpose to argue, and does not
very materially effect the question, in s:) far as it is connected
with the war; but in places of the third class, which is of the
greatest importance, the preceeding Congress were of the opinion
(which they formally emboalied into a  amendrment to theconstitution) that they had no power at alLto intetfere.'This embraces, with the exception of the fugitive slave law and clause,
all the power it is claimed the national government has over the
matter, and was enacted chiefly by men of radical views. It is
now the right of the opposition to demand that they (the radicals)
(having exhausted, in their own manner, all the power they
themselves claim over this matter) should let th' agitation of it
alone.  This gets rid of the matter as a state institution.  But 
2B
in regard to each individual negro, the question arises what is
to be done with the fugitive slave law, in reference to the contrabands.  Even in this respect, the above policy could be practically carried out.  The Government cannot question the tenure by which these persons are held to service or labor, hut until
their be a claim made for their services they (the contrabands)
must be regarded as free persons and should be used as such,
but (waving all questions of right) let me ask, does policy dictate that they sloulId be employed as laborers in preference to
white men, or on an equality with white men in the ranks,
which is not elevatiug the negro but degrading our own class,
thereby causiig dissatisfaction in:the army,  or should  the
families of negroes be  mantained and supported whilst the tamilies of patriotic volunteers are suffering. I am satisficd that
you will not say such is good policy.
Again, the fugitiv6 slave law should and can only be executed
through civil officers. If some States have, by their own course,
destroyed these officers, they alone should be made to reap the
benefit.  The military have not been called out to execute the
laws, but to put down those who are endeavoring to prevent
their execution; much less is it to prevent themselves the execution
of the laws, as is supposed by some.  Whiilst this policy would
not assist negroes in running away, it would not at the same
time make the men of the army negro catchers.  The army can
no more accomplish two things, at one and the same time, than
an individual. If it is to engage in the African slave trade, the
war will necessarily have to take care of itself; but if, by hard and
strong blows, it is intended to use it for the purpose of putting an
end to the rebellion, abolition and slavery must take care of
themselves.  Let it oncebe proclaimed that the army is to have
n: g  at all to do with the negro question, and there would
be~0'diffidulty in filling up the ranks, and all would yet be
well. I have the honor to be, Mr. President,
Your most humble
and obedient servant,
ANDREPW J. WILCOX.
To His Excellency, Abraham Lincoln.
.t, 
One word here, in regard to the war. If, it (the war) shall
be made the means of putting an end to the agitation of the
slavery question, which is the only means that will secure the
National peace and happiness, not only of the present generation, but of generations yet unborn, then it shall have been to
some purpose. If not, then the loss of thousands of lives and
the expenditure of millions of dollars will all have been in vain.
23 
0
4