American Eloquence Volume III Part 5

OF LOUISIANA. (BORN 1811, DIED 1864.)

ON THE PROPERTY DOCTRINE, OR THE RIGHT OF PROPERTY IN SLAVES;

SENATE OF THE UNITED STATES, MARCH 11, 1858.

MR. PRESIDENT, the whole subject of slavery, so far as it is involved in the issue now before the country, is narrowed down at last to a controversy on the solitary point, whether it be competent for the Congress of the United States, directly or indirectly, to exclude slavery from the Territories of the Union. The Supreme Court of the United States have given a negative answer to this proposition, and it shall be my first effort to support that negation by argument, independently of the authority of the decision.

It seems to me that the radical, fundamental error which underlies the argument in affirmation of this power, is the a.s.sumption that slavery is the creature of the statute law of the several States where it is established; that it has no existence outside of the limits of those States; that slaves are not property beyond those limits; and that property in slaves is neither recognized nor protected by the Const.i.tution of the United States, nor by international law. I controvert all these propositions, and shall proceed at once to my argument.

Mr. President, the thirteen colonies, which on the 4th of July, 1776, a.s.serted their independence, were British colonies, governed by British laws. Our ancestors in their emigration to this country brought with them the common law of England as their birthright. They adopted its principles for their government so far as it was not incompatible with the peculiarities of their situation in a rude and unsettled country.

Great Britain then having the sovereignty over the colonies, possessed undoubted power to regulate their inst.i.tutions, to control their commerce, and to give laws to their intercourse, both with the mother and the other nations of the earth. If I can show, as I hope to be able to establish to the satisfaction of the Senate, that the nation thus exercising sovereign power over these thirteen colonies did establish slavery in them, did maintain and protect the inst.i.tution, did originate and carry on the slave trade, did support and foster that trade, that it forbade the colonies permission either to emanc.i.p.ate or export their slaves, that it prohibited them from inaugurating any legislation in diminution or discouragement of the inst.i.tution--nay, sir, more, if, at the date of our Revolution I can show that African slavery existed in England as it did on this continent, if I can show that slaves were sold upon the slave mart, in the Exchange and other public places of resort in the city of London as they were on this continent, then I shall not hazard too much in the a.s.sertion that slavery was the common law of the thirteen States of the Confederacy at the time they burst the bonds that united them to the mother country.

This legislation, Mr. President, as I have said before, emanating from the mother country, fixed the inst.i.tution upon the colonies. They could not resist it. All their right was limited to pet.i.tion, to remonstrance, and to attempts at legislation at home to diminish the evil. Every such attempt was sternly repressed by the British Crown. In 1760, South Carolina pa.s.sed an act prohibiting the further importation of African slaves. The act was rejected by the Crown; the Governor was reprimanded; and a circular was sent to all the Governors of all the colonies, warning them against presuming to countenance such legislation. In 1765, a similar bill was twice read in the a.s.sembly of Jamaica. The news reached Great Britain before its final pa.s.sage. Instructions were sent out to the royal Governor; he called the House of a.s.sembly before him, communicated his instructions, and forbade any further progress of the bill. In 1774, in spite of this discountenancing action of the mother Government, two bills pa.s.sed the Legislative a.s.sembly of Jamaica; and the Earl of Dartmouth, then Secretary of State, wrote to Sir Basil Keith, the Governor of the colony, that "these measures had created alarm to the merchants of Great Britain engaged in that branch of commerce;" and forbidding him, "on pain of removal from his Government, to a.s.sent to such laws."

Finally, in 1775--mark the date--1775--after the revolutionary struggle had commenced, whilst the Continental Congress was in session, after armies had been levied, after Crown Point and Ticonderoga had been taken possession of by the insurgent colonists, and after the first blood shed in the Revolution had reddened the spring sod upon the green at Lexington, this same Earl of Dartmouth, in remonstrance from the agent of the colonies, replied:

"We cannot allow the colonies to check or discourage in any degree a traffic so beneficial to the nation."

I say, then, that down to the very moment when our independence was won, slavery, by the statute law of England, was the common law of the old thirteen colonies. But, sir, my task does not end here. I desire to show you that by her jurisprudence, that by the decisions of her judges, and the answers of her lawyers to questions from the Crown and from public bodies, this same inst.i.tution was declared to be recognized by the common law of England; and slaves were declared to be, in their language, merchandise, chattels, just as much private property as any other merchandise or any other chattel.

A short time prior to the year 1713, a contract had been formed between Spain and a certain company, called the Royal Guinea Company, that had been established in France. This contract was technically called in those days an _a.s.siento_. By the treaty of Utrecht of the 11th of April, 1713, Great Britain, through her diplomatists, obtained a transfer of that contract. She yielded considerations for it. The obtaining of that contract was greeted in England with shouts of joy. It was considered a triumph of diplomacy. It was followed in the month of May, 1713, by a new contract in form, by which the British Government undertook, for the term of thirty years then next to come, to transport annually 4800 slaves to the Spanish American colonies, at a fixed price. Almost immediately after this new contract, a question arose in the English Council as to what was the true legal character of the slaves thus to be exported to the Spanish American colonies; and, according to the forms of the British const.i.tution, the question was submitted by the Crown in council to the twelve judges of England. I have their answer here; it is in these words:

"In pursuance of His Majesty's order in council, hereunto annexed, we do humbly certify our opinion to be that negroes are merchandise."

Signed by Lord Chief-Justice Holt, Judge Pollexfen, and eight other judges of England.

Mr. Mason. What is the date of that?

Mr. Benjamin. It was immediately after the treaty of Utrecht, in 1713.

Very soon afterwards the nascent spirit of fanaticism began to obtain a foothold in England; and although large numbers of negro slaves were owned in Great Britain, and, as I said before, were daily sold on the public exchange in Lon-don, questions arose as to the right of the owners to retain property in their slaves; and the merchants of London, alarmed, submitted the question to Sir Philip Yorke, who afterwards became Lord Hardwicke, and to Lord Talbot, who were then the solicitor and attorney-general of the kingdom. The question was propounded to them, "What are the rights of a British owner of a slave in England?"

and this is the answer of those two legal functionaries. They certified that "a slave coming from the West Indies to England with or without his master, doth not become free; and his master's property in him is not thereby determined nor varied, and the master may legally compel him to return to the plantations."

And, in 1749, the same question again came up before Sir Philip Yorke, then Lord Chancellor of England, under the t.i.tle of Lord Hardwicke, and, by a decree in chancery in the case before him, he affirmed the doctrine which he had uttered when he was attorney-general of Great Britain.

Things thus stood in England until the year 1771, when the spirit of fanaticism, to which I have adverted, acquiring strength, finally operated upon Lord Mansfield, who, by a judgment rendered in a case known as the celebrated Sommersett case, subverted the common law of England by judicial legislation, as I shall prove in an instant. I say it not on my own authority. I would not be so presumptuous. The Senator from Maine (Mr. Fessenden) need not smile at my statement. I will give him higher authority than anything I can dare a.s.sert. I say that in 1771 Lord Mansfield subverted the common law of England in the Sommersett case, and decided, not that a slave carried to England from the West Indies by his master thereby became free, but that by the law of England, if the slave resisted the master, there was no remedy by which the master could exercise his control; that the colonial legislation which afforded the master means of controlling his property had no authority in England, and that England by her laws had provided no subst.i.tute for that authority. That was what Lord Mansfield decided.

I say this was judicial legislation. I say it subverted the entire previous jurisprudence of Great Britain. I have just adverted to the authorities for that position. Lord Mansfield felt it. The case was argued before him over and over again, and he begged the parties to compromise. They said they would not. "Why," said he, "I have known six of these cases already, and in five out of the six there was a compromise; you had better compromise this matter"; but the parties said no, they would stand on the law; and then, after holding the case up two terms, Lord Mansfield mustered up courage to say just what I have a.s.serted to be his decision; that there was no law in England affording the master control over his slave; and that therefore the master's putting him on board of a vessel in irons, being unsupported by authority derived from English law, and the colonial law not being in force in England, he would discharge the slave from custody on _habeas corpus_, and leave the master to his remedy as best he could find one.

Mr. Fessenden. Decided so unwillingly.

Mr. Benjamin. The gentleman is right--very unwillingly. He was driven to the decision by the paramount power which is now perverting the principles, and obscuring the judgment of the people of the North; and of which I must say there is no more striking example to be found than its effect on the clear and logical intellect of my friend from Maine.

Mr. President, I make these charges in relation to that judgment, because in them I am supported by an intellect greater than Mansfield's; by a judge of resplendent genius and consummate learning; one who, in all questions of international law, on all subjects not dependent upon the peculiar munic.i.p.al technical common law of England, has won for himself the proudest name in the annals of her jurisprudence--the gentleman knows well that I refer to Lord Stowell. As late as 1827, twenty years after Great Britain had abolished the slave trade, six years before she was brought to the point of confiscating the property of her colonies which she had forced them to buy, a case was brought before that celebrated judge; a case known to all lawyers by the name of the slave Grace. It was pretended in the argument that the slave Grace was free, because she had been carried to England, and it was said, under the authority of Lord Mansfield's decision in the Sommersett case, that, having once breathed English air, she was free; that the atmosphere of that favored kingdom was too pure to be breathed by a slave. Lord Stowell, in answering that legal argument, said that after painful and laborious research into historical records, he did not find anything touching the peculiar fitness of the English atmosphere for respiration during the ten centuries that slaves had lived in England.

After that decision had been rendered, Lord Stowell, who was at that time in correspondence with Judge Story, sent him a copy of it, and wrote to him upon the subject of his judgment. No man will doubt the anti-slavery feelings and proclivities of Judge Story. He was asked to take the decision into consideration and give his opinion about it. Here is his answer:

"I have read, with great attention, your judgment in the slave case.

Upon the fullest consideration which I have been able to give the subject, I entirely concur in your views. If I had been called upon to p.r.o.nounce a judgment in a like case, I should have certainly arrived at the same result."

That was the opinion of Judge Story in 1827; but, sir, whilst contending, as I here contend, as a proposition, based in history, maintained by legislation, supported by judicial authority of the greatest weight, that slavery, as an inst.i.tution, was protected by the common law of these colonies at the date of the Declaration of Independence, I go further, though not necessary to my argument, and declare that it was the common law of North and South America alike.

Thus, Mr. President, I say that even if we admit for the moment that the common law of the nations which colonized this continent, the inst.i.tution of slavery at the time of our independence, was dying away by the manumissions either gratuitous or for a price of those who held the people as slaves, yet, so far as the continent of America was concerned, North and South, there did not breathe a being who did not know that a negro, under the common law of the continent, was merchandise, was property, was a slave, and that he could only extricate himself from that status, stamped upon him by the common law of the country, by positive proof of manumission. No man was bound to show t.i.tle to his negro slave. The slave was bound to show manumission under which he had acquired his freedom, by the common law of every colony.

Why, sir, can any man doubt, is there a gentleman here, even the Senator from Maine, who doubts that if, after the Revolution, the different States of this Union had not pa.s.sed laws upon the subject to abolish slavery, to subvert this common law of the continent, every one of these States would be slave States yet? How came they free States? Did not they have this inst.i.tution of slavery imprinted upon them by the power of the mother country? How did they get rid of it? All, all must admit that they had to pa.s.s positive acts of legislation to accomplish this purpose. Without that legislation they would still be slave States.

What, then, becomes of the pretext that slavery only exists in those States where it was established by positive legislation, that it has no inherent vitality out of those States, and that slaves are not considered as property by the Const.i.tution of the United States?

When the delegates of the several colonies which had thus a.s.serted their independence of the British Crown met in convention, the decision of Lord Mansfield in the Sommersett case was recent, was known to all. At the same time, a number of the northern colonies had taken incipient steps for the emanc.i.p.ation of their slaves. Here permit me to say, sir, that, with a prudent regard to what the Senator from Maine (Mr. Hamlin) yesterday called the "sensitive pocket-nerve," they all made these provisions prospective. Slavery was to be abolished after a certain future time--just enough time to give their citizens convenient opportunity for selling the slaves to southern planters, putting the money in their pockets, and then sending to us here, on this floor, representatives who flaunt in robes of sanctimonious holiness; who make parade of a cheap philanthropy, exercised at our expense; and who say to all men: "Look ye now, how holy, how pure we are; you are polluted by the touch of slavery; we are free from it."

Now, sir, because the Supreme Court of the United States says--what is patent to every man who reads the Const.i.tution of the United States--that it does guaranty property in slaves,it has been attacked with vituperation here, on this floor, by Senators on all sides. Some have abstained from any indecent, insulting remarks in relation to the Court. Some have confined themselves to calm and legitimate argument. To them I am about to reply. To the others, I shall have something to say a little later. What says the Senator from Maine (Mr. Fessenden)? He says:

"Had the result of that election been otherwise, and had not the (Democratic) party triumphed on the dogma which they had thus introduced, we should never have heard of a doctrine so utterly at variance with all truth; so utterly dest.i.tute of all legal logic; so founded on error, and unsupported by anything like argument, as is the opinion of the Supreme Court."

He says, further:

"I should like, if I had time, to attempt to demonstrate the fallacy of that opinion. I have examined the view of the Supreme Court of the United States on the question of the power of the Const.i.tution to carry slavery into free territory belonging to the United States, and I tell you that I believe any tolerably respectable lawyer in the United States can show, beyond all question, to any fair and unprejudiced mind, that the decision has nothing to stand upon except a.s.sumption, and bad logic from the a.s.sumptions made. The main proposition on which that decision is founded, the corner-stone of it, without which it is nothing, without which it fails entirely to satisfy the mind of any man, is this: that the Const.i.tution of the United States recognizes property in slaves, and protects it as such. I deny it. It neither recognizes slaves as property, nor does it protect slaves as property."

The Senator here, you see, says that the whole decision is based on that a.s.sumption, which is false. He says that the Const.i.tution does not recognize slaves as property, nor protect them as property, and his reasoning, a little further on, is somewhat curious. He says:

"On what do they found the a.s.sertion that the Const.i.tution recognizes slavery as property? On the provision of the Const.i.tution by which Congress is prohibited from pa.s.sing a law to prevent the African slave trade for twenty years; and therefore they say the Const.i.tution recognizes slaves as property."

I should think that was a pretty fair recognition of it. On this point the gentleman declares:

"Will not anybody see that this const.i.tutional provision, if it works one way, must work the other? If, by allowing the slave trade for twenty years, we recognize slaves as property, when we say that at the end of twenty years we will cease to allow it, or may cease to do so, is not that denying them to be property after that period elapses?"

That is the argument. Nothing but my respect for the logical intellect of the Senator from Maine could make me treat this argument as serious, and nothing but having heard it myself would make me believe that he ever uttered it. What, sir! The Const.i.tution of our country says to the South, "you shall count as the basis of your representation five slaves as being three white men; you may be protected in the natural increase of your slaves; nay, more, as a matter of compromise you may increase their number if you choose, for twenty years, by importation; when these twenty years are out, you shall stop." The Supreme Court of the United States says, "well; is not this a recognition of slavery, of property in slaves?" "Oh, no," says the gentleman, "the rule must work both ways; there is a converse to the proposition." Now, sir, to an ordinary, uninstructed intellect, it would seem that the converse of the proposition was simply that at the end of twenty years you should not any longer increase your numbers by importation; but the gentleman says the converse of the proposition is that at the end of the twenty years, after you have, under the guarantee of the Const.i.tution, been adding by importation to the previous number of your slaves, then all those that you had before, and all those that, under that Const.i.tution, you have imported, cease to be recognized as property by the Const.i.tution, and on this proposition he a.s.sails the Supreme Court of the United States--a proposition which he says will occur to anybody.

Mr. Fessenden. Will the Senator allow me?

Mr. Benjamin. I should be very glad to enter into this debate now, but I fear it is so late that I shall not be able to get through to-day.

Mr. Fessenden. I suppose it is of no consequence.

Mr. Benjamin. What says the Senator from Vermont (Mr. Collamer), who also went into this examination somewhat extensively. I read from his printed speech:

"I do not say that slaves are never property. I do not say that they are, or are not. Within the limits of a State which declares them to be property, they are property, because they are within the jurisdiction of that government which makes the declaration; but I should wish to speak of it in the light of a member of the United States Senate, and in the language of the United States Const.i.tution. If this be property in the States, what is the nature and extent of it? I insist that the Supreme Court has often decided, and everybody has understood, that slavery is a local inst.i.tution, existing by force of State law; and of course that law can give it no possible character beyond the limits of that State."

I shall no doubt find the idea better expressed in the opinion of Judge Nelson, in this same Dred Scott decision. I prefer to read his language.

"Here is the law; and under it exists the law of slavery in the different States. By virtue of this very principle it cannot extend one inch beyond its own territorial limits. A State cannot regulate the relation of master and slave, of owner and property, the manner and t.i.tle of descent, or anything else, one inch beyond its territory. Then you cannot, by virtue of the law of slavery, if it makes slaves property in a State, if you please, move that property out of the State. It ends whenever you pa.s.s from that State. You may pa.s.s into another State that has a like law; and if you do, you hold it by virtue of that law; but the moment you pa.s.s beyond the limits of the slaveholding States, all t.i.tle to the property called property in slaves, there ends. Under such a law slaves cannot be carried as property into the Territories, or anywhere else beyond the States authorizing it. It is not property anywhere else. If the Const.i.tution of the United States gives any other and further character than this to slave property, let us acknowledge it fairly and end all strife about it. If it does not, I ask in all candor, that men on the other side shall say so, and let this point be settled. What is the point we are to inquire into? It is this: does the Const.i.tution of the United States make slaves property beyond the jurisdiction of the States authorizing slavery? If it only acknowledges them as property within that jurisdiction, it has not extended the property one inch beyond the State line; but if, as the Supreme Court seems to say, it does recognize and protect them as property further than State limits, and more than the State laws do, then, indeed, it becomes like other property. The Supreme Court rests this claim upon this clause of the Const.i.tution: 'No person held to service or labor in one State, under the laws thereof, shall, 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 or labor may be due.' Now the question is, does that guaranty it? Does that make it the same as other property? The very fact that this clause makes provision on the subject of persons bound to service, shows that the framers of the Const.i.tution did not regard it as other property. It was a thing that needed some provision; other property did not. The insertion of such a provision shows that it was not regarded as other property. If a man's horse stray from Delaware into Pennsylvania, he can go and get it. Is there any provision in the Const.i.tution for it? No.

How came this to be there, if a slave is property? If it is the same as other property, why have any provision about it?'"