« PreviousContinue »
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 pronounce 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, while 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 institution, 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 institution 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 title 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 differ. ent States of this Union had not passed 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 institution 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 pass 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 Constitution of the United States?
When the delegates of the several colonies which had thus asserted 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 emancipation 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 timejust 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 Constitution of the United States-that it does guarantee 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
"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 destitute 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 Constitution 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 assumption, and bad logic from the assumptions made. The main proposition on which that decision is founded, the cornerstone of it, without which it is nothing, without which it fails entirely to satisfy the mind of any man, is this: that the Constitution 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 assumption, which is false. He says that the Constitution 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 assertion that the Constitution recognizes slavery as property? On the provision of the Constitution by which Congress is prohibited from
passing a law to prevent the African slave trade for twenty years; and therefore they say the Constitution 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 constitutional 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 Constitution 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 importa tion; 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 Constitution, been adding by importa