Speech of Mr. R. Toombs, of Georgia, in the House of representatives, February 27, 1850, in committee of the whole on the state of the Union, on the President's message communicating the constitution of California Page: 3 of 8
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It being unimportant to my argument from whence the power to legislate over the Territories
is derived, I shall not now discuss it. No matter where you place it, the power to legislate
against slavery is not a legitimate incident to it, and cannot by any just rule of constitutional
construction be derived from it. The object, the end, is nowhere sanctioned by the Constitu-
tion; therefore the means cannot be implied. The argument of the North, stated briefly, is
this: That the object of the power to legislate over the Territories is to give them gocd goa ern-
ment, and that the exclusion of slavery is a necessary and proper means to secure that object.
The conclusion is not warranted by the premises, even considering it as a general proposition,
without reference to our peculiar form of government ; taken in that connexion it is not only il-
logical, but atrocious. It is assuming that there was an implied power given to the head of our
political system to war against its members-a power to stamp with reprobation the institutions
of fifteen States of the Republic, to declare their institutions inconsistent with good govern-
ment, and to forbid their adoption, even if desired by the people, by the inhabitants of the com-
mon domain of all the States. There lies the real question between us. This pretension is not
only not warranted by the Constitution, but brings you in direct collision with the fundamental
principles of this Government, and of all good government. This Government was established
for the protection of the rights of persons and the rights of property of the political communities
which adopted it. These are the primary objects of all good government. The protection of
property is the corner-stone of industry, of national progress, of civilization. No government
can stand in America, or ought to stand any where, which brings its powers in hostilty to the
property of thep eople. These principles are the foundation of the positions which I assumed at
the opening of this Congress. They elicited much animadversion from the press of the North,
and some from people at the South who are amorg us, but not of us. I desire here, again, to
reaffirm them. I shall stand by them ; if their maintenance by the South costa the Umon, it is
your fault, not ours. Our jives, our property, our constitutional privileges re all really involv-
ed in the issue. Your position offers s the fate of Hayti, or, at best, of Jamaica, or reistance
to lawless rule. I trust there is nothing it our past history which ought to induce yni to doubt
which alternative we shall accept. Though the Union may perish, though slavery may perish,
I warn my countrymen never to surrender their right to an equal participation in the comnion
property of the Republic, nor their right to full and ample protection of their property from
their own government. The day they do this deed " their fall will be like that of Lucifer, never
to rise again."
This general duty of Government to protect the property of the people is so obvimisly just.
that it is usually admitted, with the qualification of excepting slave property. This \ery ex-
ception is but asserting, in a more odious formihostility to our rights. The principle upor
which the exception is pretended to be based is, that slavery is a peculiar institution, and Is
against the common law of mankind. If slavery is a peculiar institution, I have to reply, then
our Government is a peculiar government, and our Constitution is a peculiar canstitutioi, for I
have already shown that both the Government and the Constitution are impregnated with the
peculiarity. "The common law of mankind" is at best but an uncertain term. It wants many
of the essential ingredients of good law. It is difficult of ascertainment, and more difficult to
enforce. I take its best exponent to be the practice of mankind. Tested ty this rule, the po-
sition of our opponents is untenable. There is no period in the history of the human race in
which slavery has not existed in a great portion of the earth. It was the universal practice of
mankind frori the days of Abraham until the formation of our Constitution. It wos expressly
authorized and sanctioned by the successor of St. Peter in the sixteenth century, and was at
that time the general law of Christendom. At the formation of our Constitution property in
slaves was recognised and protected in some form by every civilized government in the world.
If our constitutional rights to the protection of our slave property is to be subjected to this new
test, this new invention of our opponents, "the common law of mankind," we clam to stand
upon the law as it stood when the compact was made. It is the legal and Just rule of construing
private contracts: it is equally just when applied to the exposition of public compacts. It is
the only mode of arriving at the true sense and meaning of the parties to the compact in relation
to the test applied. At that day slavery was lawful in every country in the world where it
was not prohibited by law. The dictum of Lord Mansfield to the contrary, in Sornersett'v
case, in 1772, was outside of the case before him, against the express decision of Lor IH ard
wicke and other eminent English jurists on the precise point, and was disavowed fifty yearn
afterwards in a judicial decision by Lord Stowell, one of the most able, learned, and aecom-
plished of England's judges. That such was the common law of these colonies Lord Mansfield
himself, in the case referred to. expressly affirmed ; and that such was the understanding of the
law by the States who formed our Constitution is conclusively proved by the fact, that eman.
cipation, wi ere it has taken place, has been effected, in every instance but one, by express pro-
hibition; and it is further shown by the uniform protection which this Government, trom its
foundation, has given to property in slaves without inquiry into its origin. This Government
has no power to declare what shall or what shall not be property. or to regulate the manner or
places of its enjoyment, except in the cases of patent rights and c(pyrights. This :awer I"-
longs to the State 'ovenmn- - eim, it exists on ' whtre Whamer ic''f the
Staten r+ .io e ,fl- '
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Toombs, Robert Augustus, 1810-1885. Speech of Mr. R. Toombs, of Georgia, in the House of representatives, February 27, 1850, in committee of the whole on the state of the Union, on the President's message communicating the constitution of California, pamphlet, 1850; (https://texashistory.unt.edu/ark:/67531/metapth497885/m1/3/: accessed June 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting Schreiner University.