arbitrarily divested or withdrawn by future
State action. It is an .incident to the sov-
ereignty of any government, that it may
take private property for public use, of the
necessity or expediency of which the gov-
ernment must judge, but the obligation to
make just compensation is concomitant with
the right. Government cannot take away
private property and rights without allow-
ing compensation.*
And to conclude the argument upon this
branch of the subject, that independent of
of all human laws and constitutions, and
upon principles of right, this Convention
has no power to pass this article, I refer to
the case of Regents of University of Mary-
land vs. Williams, 9 G. & J., 365, where
the Court, announced this principle, that
"independently of the Constitution of the
United States, and of this State, the act of
1826 is void, as opposed to the funda-
mental principles of right, and justice, in-
herent in the nature of the social compact."
Here, sir, is a recognition therefore of the
fact that there are rights which underlie
the social compact, and are beyond the
control of State action.
(The hour having expired, the hammer
fell.)
On motion of Mr. HEBB,
The speaker was allowed fifteen minutes
further time.
Mr. CLARKE proceeded: It will be im-
possible for me to finish in fifteen minutes,
but I will proceed.
Slavery, Mr. President, is not opposed to
the fundamental principles of right. If so,
Revelation never would have authorized or
sanctioned it. Robbery is expressly pro-
hibited by both human and divine laws.
But again, Mr. President, section 10 of
article I of the Constitution of the United
States, provides that " no) State shall pass
any law impairing the obligation of con-
tracts." This is the supreme law. This
is the mandate of the Constitution of the
United States, to which, Mr. President, you
have declared you owe paramount allegi-
ance. Sir. the decisions of the Courts have
announced this legal principle which is
indisputable, that a law which prohibits a
levy oil a portion of the debtor's property
* See Woodruff vs. State 3 Pike. 285.
Cooper vs. Williams, 7 Green. 273.
Strong vs. Russell, 3 Watts, 294.
Henry vs. Underwood, 1 Dana, 267.
O'Hara. Lexington 1 Dana, 232
Perry vs. Wilson, 7 Mass, 395
Boomer vs. Canal Co., 14 Conn. 146.
1 Baldwin, 220. 4 Hammond, 255. 7 Peters, 243.
Barron vs. Mayor and C. of Baltimore. |
previously subject to an existing judgment,
is unconstitutional, as impairing the obli-
gation of the contract.
Permit me to illustrate the meaning of this
view of the question. The Constitution of
the United States announces that the State
shall not impair the obligation of contracts.
There are many mortgages and bills of sale
in this State where negroes are the sole
security, upon the faith of which the con-
tract was made. Pass this article; strike
down this property; and then if any one
of that class of persons holding such secu-
rity desires to realize his money upon such
a contract or bill of sale or mortgage,
where is the security? By your legislation
you have said it shall have no existence.
You cannot proceed to enforce the contract
either by execution or by proceedings for a
sale of the property. It has been destroyed
as property by this article. The result is,
that you will have impaired by this provi-
sion of the Constitution the obligation of
the contract.
I put for further illustration, the case of a
party who dies, leaving general creditors,
and a creditor who is secured by mortgage
upon the real estate. The mortgagee en-
forces a sale of the real estate, and the entire
proceeds of sale is absorbed in the payment
of his debt. The general creditors, who
looked to the personal property—the negro
property—of the deceased for payment of
their claims, find that it has been all de-
stroyed by the adoption of this article.
The deceased has no other property from
which the payment of his general creditors
may be enforced. Not only is the obliga-
tion of the contracts made with the general
creditors impaired, but the contracts them-
selves are virtually destroyed. The vested
rights of the general creditors to have this
property applied to the payment oof their
indebtedness or contracts are entirely abro-
gated.
Take the case of a conditional sale, by
which the vendee bound himself by an
obligation which matures immediately after
this article takes effect, to purchase negroes.
The vendor is not in default. But you
have stricken down this property. Upon
whom does the loss fall? Upon the vendor
or vendee? There is no property in the
negro upon which the contract can operate.
The article clearly impairs the obligation
of the contract.
Now, sir, if this article is unconstitutional
quoad the rights of A, B and C, it is un-
constitutional quoad everybody. There |
