Delaware State journal and statesman., 1862-03-07
Communicated
" EmaneipatlOn in pelaware., :.

emancipation IN Delaware"
have observed in your paper several articles
upon this subject One Of your correspondents
ceased (but in yesterdays paper has recon-
meucedl 10 write because 0f an alleged un-
fairness in Rnotder's mode OF argument. pro.
pose to state calmly and briefly, my views upon |
the bill, describing, as far as may be able, all
personalities.
T.. 5. L. objects to the bill upon the ground of
its unGoustitutionnhy, because il works Injustice
by taking property without the consent Of own
ers--" without due process OF law Upon this
| take Issue with him.
/ The objection assumesi-
: !. That shareholders in Delaware do not CON
sent to give up their slaves
4 ,. That the State aW alloWing slavery cannot
be repealed without the consent of the owners
3. That there is no public use to justify the
State in taking property even With compensation.
]. That no State lOlerating slavery can abolish
II against the wishes Of a siugle Shareholder
/ PDese assumptions constitute the gst Of the
objections II succeed in demonstrating the
lncorrectness Of any one OF the last three, c. S.
ls argument lallsto the ground.
One word first. upon another assumption
The want of "A right in Congress to appropriate
this money. 1t is not for me TO decide upon the
eonslilutionaliy of their acts If they see
proper to pass such an act of appropriation, il
will be presumed to be constitutional until de-
clared Otherwise by judicial decision. The bur.
den Of proof rests upon the party alleging
invadty. But this is matter for Congress-
1t is not our business II is not cur response
bihiy, am bound TO presume that they would
not move in the matter unadysediy or without
a clear knowledge Of the extent OF their power.
The constitutonaliry of similar bills, now pend.
ing-one having reference 10 our own State
has not, to my knowledge, been doubted or
questioned. The prospect, think, is that Com
gress will make the offer TO US at an early date,
leaving us to accept or reject it as we please -
E The question then recurs, - Will it be constitu-
tional for our Legislature to apply the money 10
the proposed object ~
8 claim that We have few Shareholders that
I viii not accept tLis proposition. There may be
e one or two who will refuse from a desire not to
8 admit, by any possibility, that emancipation
would benefit the State--men, | moan, who are
welded to their own notions upon this vexed
question and who will not, even implicitly, admit
4 that they may be wrong.
i claim, as TO the second assumption, that law
, may be repealed by majority except in one
case, to Wit; where such repeal would impair the
:, obligation OF contracts, Another exception
Il might he suggested, it is that private property is
i always TO be respected, ami 10 yield only to the
" public use or benefit. This exception will in.
clude A considerations Of the oonsent OF the
owner.
a :, The right to take private property for public
g use is founded upon the paramount claims of
public wants and benefit over private interegts
, The extent Of the benefit neither increases nor
dimiuishes the right. If the owner does not
take what The State OF its ngent deems a fair
e compensation, he takes nothing. His consent
+ IS not n condition precedent to the operation ci
c the law; neither does his opposition 10 the OBJ
T. ject to which his property is appropriated, take
away the right Of the legislature. neither is his
1t opinion regarding the importance or the neees-
Of sity Of the public benefit Of any avail against
l gha.l al n.y. arnta aar In eisrtt
IS You say that coniiscatlon act sGquestratiou
4 process is unc0nstitut0nal 10 say that "A mAu
can hold property when d majority declare thai
II is for the public benefit thai he should Aot
ia hold 1t. Seqnesration goes even further than
10 that-it is sometimes to compel party tn appear
. ia Court, before any decree has been made
against him, before il has been decided that be
ne has done any wrong or withheld any right. Ii
e. the other cases. the principle is that the publ,
H. interest requires the giving up Of some pfvat,
at Interest take IT,, that upou this ground, more
It, than any other-a ground occasioned by necessi
T. ty to be sure-the right Of Congress 10 emanei-
g. pa'e slaves, under the war power as it is called
III rests.
g. To the third assumption, answer that an,
l. public benefit is sufficient The State has a
Of much right to abolish slavery if it ia foun,
at harmful, as it has to abate any other nuisance
10 do this, it always interferes with some pTivat
i. right Why! For the public good. So, if N,
uOuHc oNhuub III lnH WY Ol Corporation ptlNi
- leges, oil it goes with or without my consent
=. II my negrO-suppOaing have One-sands i
ar the way Of the public prosperity or il my right
~ to him is deemed not TO be a moral right, or
as my continuing to hold him retards either publ
- progress policy or morals away goes my negro
a, and can't help it, for it is lawful. The Stat
~ law says to me- you may own negroes; Il is no
right of property derived from universal an
natural law, il is right under municipal law. !
majority Of my fellow citizens through their re
In presentatiVes, say we repeal that law The prop
go from under my right of property, have n
1es possession, except at the icHi Of my property
very queer thing for my property to havel WI
of says that it is unconstitutional to repeal thp
law 1 admit il would he different with
les right of property derived from natural and un
nq vereal law. This right municipal law could nc
take away. But the State law gives no righ
creates no privilege and enters into no 0biga
tions-except those OF contract, which repei
of the law cannot rghtfully take away, deter
md mine aud make Of effect
ate Take a few instances. Suppose l engage
nd. business which the Legislature subsequently dc
e." clares to be contrary to public policy, There
ion no respect due to my property which is empoyt
in the business. Suppose the legislature decai
uld that shall not sell my liquors, because il wou
war be for the public harm. My right of alienation
uly so favored by law, so necessary to my propert
Try aud in some cases, as in fee-simple, so ind
am pensable is abridged and Of course, in this cas-
ron my property itself restricted, that it hecom
10 of no value to me. The effect Of the law is
take il awny, lgithom compensation vii
un- positive damage-for the public good.
his Again, | oppose the purpose of n certain col
,re, poration II approprates my property again
up my will and it can do 50 lawfully. If iu
mi says have sustained no pecunary damage, II
ow- property goes into other hands without my Co
the sent. And this involuntary transfer is oonsit
.ra- tiounl. Thus for instance the right of ",
ing through my land is acquired without my conse
nay lit may be against my will and its effect IS
AXE take away and to deprive me Of the land requir
ire; for corporate purposes for in this case the Ia
be gives not merely n right of way but the la
the itself But II is useless to multiply cases. T
legislature may determine what the public u
pre- and benefit require, aud, willing or unwn
au- must acQuiesce, So, with all respect | say
and constitutional right to property is glitter
'ere generality" subject to thousand variation
= to exceptions, and qualifications in practice. T
no difficulty is to find out what property is REFER
1873 to in its guarantee Is it property by univeri
ed and natural law, or does the Constitution reco
led nize slavery and thereby extend lis protection
lied that kind Of property oohtend that I
former is the only correct view.
At A. The right Of n State to abolish slavery
suits from ito right to repeal the positive la