American Eloquence, Volume III. (of 4) by Various

V >> Various >> American Eloquence, Volume III. (of 4)

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15

* * * * *

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 certain company, called the Royal Guinea Company, that had
been established in France. This contract was technically called in
those days an _assiento_. 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 constitution, 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 title 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 assert. 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
substitute 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
asserted 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 municipal 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
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, 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 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 different
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 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 Constitution 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 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 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 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 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 Constitution, been adding by
importation to the previous number of your slaves, then all those that
you had before, and all those that, under that Constitution, you have
imported, cease to be recognized as property by the Constitution, and
on this proposition he assails 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 Constitution. 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 institution, 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
title 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 pass from that State. You may pass into another State that
has a like law; and if you do, you hold it by virtue of that law; but
the moment you pass beyond the limits of the slaveholding States, all
title 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 Constitution 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 Constitution 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 Constitution: '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 Constitution 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 Constitution 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?'"

It will undoubtedly have struck any person, in hearing this passage read
from the speech of the Senator from Vermont, whom I regret not to see
in his seat to-day, that the whole argument, ingeniously as it is put,
rests upon this fallacy--if I may say so with due respect to him--that
a man cannot have title in property wherever the law does not give him
a remedy or process for the assertion of his title; or, in other words,
his whole argument rests upon the old confusion of ideas which considers
a man's right and his remedy to be one and the same thing. I have
already shown to you, by the passages I have cited from the opinions of
Lord Stowell and of Judge Story, how they regard this subject. They say
that the slave who goes to England, or goes to Massachusetts, from a
slave State, is still a slave, that he is still his master's property;
but that his master has lost control over him, not by reason of the
cessation of his property, but because those States grant no remedy to
the master by which he can exercise his control.

There are numerous illustrations upon this point--illustrations
furnished by the copyright laws, illustrations furnished by patent laws.
Let us take a case, one that appeals to us all. There lives now a man
in England who from time to time sings to the enchanted ear of the
civilized world strains of such melody that the charmed senses seem to
abandon the grosser regions of earth, and to rise to purer and serener
regions above. God has created that man a poet. His inspiration is his;
his songs are his by right divine; they are his property so recognized
by human law; yet here in these United States men steal Tennyson's works
and sell his property for their profit; and this because, in spite of
the violated conscience of the nation, we refuse to give him protection
for his property. Examine your Constitution; are slaves the only species
of property there recognized as requiring peculiar protection? Sir, the
inventive genius of our brethren of the North is a source of vast wealth
to them and vast benefit to the nation. I saw a short time ago in one of
the New York journals, that the estimated value of a few of the patents
now before us in this Capital for renewal, was $40,000,000. I cannot
believe that the entire capital, invested in inventions of this
character in the United States can fall short of one hundred and fifty
or two hundred million dollars. On what protection does this vast
property rest? Just upon that same constitutional protection which gives
a remedy to the slave owner when his property is, also found outside of
the limits of the State in which he lives.

Without this protection, what would be the condition of the northern
inventor? Why, sir, the Vermont inventor protected by his own law would
come to Massachusetts, and there say to the pirate who had stolen his
property, "Render me up my property or pay me value for its use." The
Senator from Vermont would receive for answer, if he were the counsel of
the Vermont inventor, "Sir, if you want protection for your property go
to your own State; property is governed by the laws of the State within
whose jurisdiction it is found; you have no property in your invention
outside of the limits of your State; you cannot go an inch beyond it."
Would not this be so? Does not every man see at once that the right
of the inventor to his discovery, that the right of the poet to his
inspiration, depends upon those principles of eternal justice which God
has implanted in the heart of man, and that wherever he cannot exercise
them it is because man, faithless to the trust that he has received from
God, denies them the protection to which they are entitled?'

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15