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JUDAH P. BENJAMIN,*

OF LOUISIANA.'

(BORN 1811, DIED 1864.)

ON THE PROPERTY DOCTRINE, OR THE RIGHT OF PROPERTY IN SLAVES; SENATE OF THE UNITED STATES, MARCH 11, 1858.2

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.

* For notes on Benjamin, see Appendix, p. 363.

VOL. III.-9

It seems to me that the radical, fundamental error which underlies the argument in affirmation of this power, is the assumption 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 Constitution 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, asserted 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 institutions, 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 institution, did originate and carry on the slave trade, did support and foster that trade, that it forbade the colonies permission either to emancipate or export their slaves, that it prohibited them from inaugurating any legislation in diminution or discouragement of the institution-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 assertion 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.

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This legislation, Mr. President, as I have said before, emanating from the mother country, fixed the institution upon the colonies. They could not resist it. All their right was limited

to petition, 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 passed 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 Assembly of Jamaica. The news reached Great Britain before its final passage. Instructions were sent out to the royal Governor; he called the House of Assembly 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 passed the Legislative Assembly 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 assent 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 institution 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

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