negro boy. I mention it because I desire to state authorities fairly. I desire that all shall be presented so that we shall be able to judge how the common law of England was. In a case immediately after this one between Gelly and Cleve, it was adjudged that trover would not lie for a negro slave.

The next case which I have found is in 2 Lord Raymond's Reports. It is the case of Smith vs. Gould. It is also to be found in 2 Salkeld, page 666. It has been quoted on the other side, but, if I understand it, its authority is the other way clearly. The caption is:

"Trover does not lie for a negro. Where several damages are given for several injuries, the judgment may be arrested as to some of them only."

That does not refer to the point.

"In an action of trover for a negro, and several goods, the defendant let judgment go by default, and the writ of inquiry of damages was executed before the Lord Chief Justice Holt, at Guildhall, in London. Upon which the jury gave several damages, as to the goods, and the negro; and a motion as to the negro was made in arrest of judgment, that trover could not lie for it, because one could not have such a property in another as to maintain this action,"

That is the ground. Let me read it again: "That trover could not lie for it, because one could not have such a property in another as to maintain this action." The report continues:

"Mr. Salkeld, for the plaintiff, argued that a negro was a chattel by the law of the Plantations, and therefore trover would lie for him."

He did not, let me observe, contend that trover would lie by the law of England; but that trover would lie by the law of the Plantations.

"That, by the Levitical law, the master had power to kill his slave, and in Exodus, chapter xx., verse 21, it is said he is but the master's money; that, if a lord confines his villein, this court cannot set him at liberty, (Fitz., Villein, 5.")

And he relied on the case of Butts and Penny, (2 Lev., 201; 3 Kcb., 785,) the one I have just|| cited, in which no judgment was given.

"As in point, where it was held, trover would lie for negroes. Sed non allocatur. For per totam curaim this action does not lie for a negro no more than for any other man."

That is distinct and emphatic language; and this was in 5 Anne-I think in 1703, sixty-nine years before the Sommersett case. The whole court -nobody dissented-held distinctly that trover would not lie for a negro no more than for any other man. The honorable Senator from Louisiana said that the Sommersett case was a piece of judicial legislation by Lord Mansfield. Here is the same thing sixty-nine years before that case, that trover will not lie for a negro any more than for any other man. It goes on-and I want to call the honorable Senator's attention to this reasoning of the court:

"This action does not lie for a negro no more than for any other man; for the common law takes no notice of negroes being different from other men."

That is the point in this book, that by the common law negroes are like other men.

court go on to say:

Then the

"By the common law no man can have a property in another"

remember, this is in 1703

-"but in special cases, as in a villein"villeinage then existed

but even in him not to kill him; so in captives took in - war, but the taker cannot kill them, but may sell them to ransom them."

But the court go on to say:

"There is no such thing as a slave by the law of England."

This was delivered in 1703, sixty-nine years, as I said before, before that piece of judicial legislation by Lord Mansfield:

"And if a man's servant is took from him, the master cannot maintain an action for taking him, unless it is laid per quod servilium amisit."

Mr. BENJAMIN. If the gentleman will allow me, I will observe that the question discussed in that decision is a mere technical question as to the forms of action; it is not a question as to the master's right of property.

Mr. CLARK. Then I do not understand it, when the court say that an action of trover does not lie for a negro more than any other man. Can he make trover lie for a white man unless he were a villein at that time?

Mr. BENJAMIN. It would lie for n villein no more than it would for a negro. That case is

in regard to the form of action. The chief justice goes on to say, if you want to sue for a slave, put it on the ground that you have lost his labor. That is the form of the action you can bring.

Mr. CLARK. I differ entirely with the Senator from Louisiana, because then you allow the slave to stand upon the ground of a freeman. You can bring an action for his labor.

Mr. FOSTER. Yes; as a father may sue for the service of his son.

Mr. CLARK. Yes, sir, that is the ground on which you stand. But the court say, in this very case, that there is no property in man; that the law in England does not recognize property in a slave. That is the very point: whether, by the common law, slavery existed in England? and in this very case it was decided that the common law does not recognize slavery. It is a vain attempt to shove it on technicalities. It is fair and square, open and patent.

I now come to the Sommersett case. I cite that, not to be tedious; not because I suppose it is not well understood; but to show that Lord Mansfield considered in his argument the very cases which the Senator from Louisiana has so eloquently commented upon. The Senator from Louisiana talks about the opinion of Sir Philip Yorke, and the decision of Lord Hardwick afterwards. I state here, and will show in the Sommersett case, that in the reasoning of the court, the court were aware of it, and overruled it; and said they could not allow any force to it. I will read the opinion of Lord Mansfield. He says:

"We pay all due attention to the opinion of Sir Philip Yorke and Lord Chief Justice Talbol"-

Mr. FESSENDEN. What book are you reading from?

in

Mr. CLARK. Loft's Reports, 12 George III. I am now reading from the Sommersett case, 1772, which is to be found on the 19th page:

"We pay all due attention to the opinion of Sir Philip Yorke and Lord Chief Justice Tallot whereby they pledged themselves to the British planters, for all the legal consequences of slaves coming over to this kingdom, or being baptized, recognized by Lord Hardwick, sitting as Chancellor, on the 19th of October, 1749, that trover would lie: that a notion had prevailed, if a negro came over, or became a Christian, he was emancipated, but no ground in law; that he and Lord Talbot, when Attorney and Solicitor General, were of opinion that no such claim for freedom was valid; that though the statute of tenures had abolished villeins regardant to a manor, yet he did not conceive but that a man might still become a villein in gross, by confessing himself such in open court."

Then said Lord Mansfield:

"We are so well agreed that we think there is no occasion of having it argued (as I intimated an intention at first) before all the judges, as is usual, for obvious reasons, on a return to a habeas corpus; the only question before us is, whether the cause on the return is sufficient? If it is, the negro must be remanded; if it is not, he must be discharged. Accordingly, the return states that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself, is crased from memory. It is so odious that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England: and therefore the black must be discharged."

Mr. BENJAMIN. Will the Senator permit me to ask if Lord Mansfield does not say, in that very decision, that there were then many thousand pounds' worth of slaves in England?

Mr. CLARK. I will read it all and see. This is Lord Mansfield:

"On the part of Sommersett, the case which we gave notice shall be decided this day, the court now proceeds to give its opinion. I shall recite the return to the writ of habeas corpus, as the ground of our determination, omitting only words of form. The captain of the ship on board of which the negro was taken makes his return to the writ in terms signifying that there have been, and still are, slaves to a great number in Africa; and that the trade in them is authorized by the laws and opinions of Virginia and Jamaica; that they are goods and chattels, and, as such, salable and sold. That James Sommerset is a negro of Africa, and, long before the return of the King's writ, was brought to be sold, and was sold to Charles Stewart, Esq., then in Jamaica, and has not been manumitted since; that Mr. Stewart, having oecasion to transact business, came over hither, with an intention to return, and brought Sommersett to attend and abide with him, and to carry him back as soon as the business should be transacted. That such intention has been, and still continues; and that the negro did remain till the time of his departure, in the service of his master, Mr. Stewart, and quitted it without his consent; and thereupon, before

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the return of the King's writ, the said Charles Stewart did commit the slave on board the Ann and Mary, to save custody, to be kept till he should set sail, and then to be taken with him to Jamaica, and there sold as a slave. And this is the cause why he, Captain Knowles, who was then, and now is, commander of the above vessel, then and now lying in the river Thames, did the said negro, committed to his custody, detain, and on which he now renders him to the orders of the court."

I have now read up to the point where I commenced in the first instance, and I find nothing of that to which the gentleman alludes.

Mr. BENJAMIN. I will state, then, that that is an imperfect report.

Mr. CLARK. I do not think it is. Mr. BENJAMIN. The whole of the decision will be found in 20 Howell's State Trials.

Mr. CLARK. I take it as it is here; and if I found anything in regard to what the Senator alludes to, I would read it. I did not select it because it did not contain such a provision; but on asking for the State Trials at the Library, I was told that it was not in, but that I should find the decision in this volume; and I took it.

The next case which I cite, is one in our own country. I have one further case to cite from England, but I propose to follow the order of time. I have cited à case in 1697. I have cited a case in 1703. There is no case intervening, that I am aware of, between that and the Sommersett case in 1772. I do not find any case after that, and I do not think the question was mooted after 1772 during that century. I do not say there were no other cases. I do not say that I have examined so thoroughly as I desire to. I have taken the cases as I found them, by the aids of such lights as were afforded me within the last few days. I come down now to our own country; and I find a case in the Kentucky Reports, in a slave State. It is the case of Rankin vs. Lydia, a slave. I do not propose to read the whole case, but I propose to read from the remarks of the court.

Mr. PUGH. If the Senator will allow me, I wish to read an extract from the Sommersett case on the point which was in issue between him and the Senator from Louisiana. It is in the argu

ment:

"About fourteen thousand slaves are at present here in England."

Mr. CLARK. It may have been so. I do not know how the historical fact was. Negroes may have been there; but the case was not to be decided on the fact of negroes being in the country, but on the fact whether slavery existed there by law. It was not a decision of how many negroes there were in the country. It may have been that a great many were brought in, but that certainly was not the question before the court.

Mr. BENJAMIN. If the gentleman will permit me a moment, as I do not mean to make another speech, I will call his attention, not to break down the force of his argument, but to fortify what I have said, which was this: that slaves were recognized as merchandise, were daily sold in the public mart in London, when this decision was made; and the evidence that this decision was judicial legislation consisted in the fact that large masses were daily sold in London without question from the authorities under the opinion of the Solicitor General and the Attorney General, until Lord Mansfield, in Sommersett's case, declared that involuntary servitude could not exist, and destroyed property in about fifteen thousand slaves. Mr. CLARK. They may have been sold by the merchants. I do not undertake to say how that was. I know that lottery tickets are sold daily, weekly, and monthly, in my State, contrary to law. Although I never bought a ticket in my life, and never shall, yet I get sent me almost every week a magnificent scheme, in which I am told to go to such a place in my own State to get

the tickets.

Mr. BENJAMIN. Do they sell them at public

auction?

Mr. CLARK. No, sir; but they sell them openly. You might as well justify Peter Funk auctions because they take place in the city of New York. This is the law we are discussing; not the practices of the English people, unless those practices have grown into custom and make law. When Lord Mansfield, or any other English judge, shall decide that so many slaves in England make the common law, then it will have

force and effect, but not till then. You may tell me that American vessels go to Africa, and are there loaded with slaves, which are reeking with them, and come into our country, for aught I know; and yet the law here is, that the slave trade is piracy. I know a man may go outside of the law, but that does not alter the law.

I proceed to read from this opinion in 2 Marshall, p. 470, in the case of Rankin vs. Lydia:

"In deciding this question, we disclaim the influence of the general principles of liberty"— the court was careful to do that

which we all admire, and conceive it ought to be decided by the law as it is, and not as it ought to be. Slavery is sanctioned by the laws of this State; and the right to hold them under our municipal regulations is unquestionable. But we view this as a right existing by positive law, of a municipal character, without foundation in the law of nature, or the unwritten and common law."

That is the decision of the State of Kentucky, that slavery did not stand upon the common law. Here, Mr. President, let me take a distinction; for I was not quite sure, by the argument of the honorable Senator from Louisiana, whether he meant to say, and confined his argument to, statute law, instead of positive law. I am not contending that slavery exists everywhere by statute law. That is the point. I say it exists only by positive or municipal law, or laws which may become positive and municipal by the force of custom, and grown up to be recognized as the positive laws of the land, but not from the common law. The court, in the decision of this case of Rankin vs. Lydia, say:

"But we view this as a right existing by positive law, of a municipal character, without foundation in the law of nature, or the unwritten and common law."

The next case to which I come, Mr. President, is one I think from the gentleman's own State. It is to be found in 2 Martin's Reports. I cite from the case of Lunsford vs. Coaquillon, page 402:

"The relation of owner and slave is, in the States of this Union, in which it has legal existence, a creature of municipal law."

Mr. BENJAMIN. There was a law in force in our State at the same time on the subject.

Mr. CLARK. The next case I shall cite is that of Forbes vs. Cochrane, to be found in 2 Barnewall and Cresswell's Reports, in which the judge says:

"I am of opinion, that according to the principles of the English law, the right to slaves, even in a country where such rights are recognized by law, must be considered as founded, not upon the law of nature, but upon the particular law of that country."

Mr. FESSENDEN. What case is that? Mr. CLARK. The case of Forbes vs. Cochrane, page 462. I could cite a great many more cases like that.

I ought, before I go further, to comment a little upon the case of the slave Grace, but it does not go to show at all, as I understand it, that slavery existed by the common law. It was a case where a slave was brought from one of the West India islands, went to England, lived there a while and then went back, and then a suit was brought, not for the purpose of determining her freedom, but which was incidentally brought to the notice of the court, and the court held that however the law might be in England, that though she might be free there, if she brought an action for freedom, yet going back to the West Indies where slavery existed, and having for four years submitted herself voluntarily to that state of servitude, she was not entitled to freedom.

I come now to the case of Prigg vs. The Commonwealth of Pennsylvania. The same case was cited by the honorable Senator from Louisiana, and I was a little surprised, I must confess, when that honorable Senator took this case against the Commonwealth of Pennsylvania, which was, in fact, as he says, a case between the State of Maryland and the State of Pennsylvania, and read from it a portion of Judge McLean's opinion to sustain the view that he was taking, to wit: that the common law recognized slavery, or that it had not been abolished in this country.

Mr. BENJAMIN. I beg the gentleman's pardon. I quoted that for the purpose of establishing, in contradiction to the Senator from Maine, [Mr. FESSENDEN,] that slave property was guarantied by the Constitution. I did not quote that upon the subject of the common law.

Mr. CLARK. I may be mistaken about the

||

precise point with which and for which the honorable Senator quoted. I dare say I am. I would not for a moment misrepresent him; but I will still say that while he had been so earnestly contending and citing authorities to show that the common law did recognize slavery; that it in fact brought it into this country; I was a little surprised, when he had this case of Prigg vs. The Commonwealth of Pennsylvania, in his hand, no matter for what purpose, nor to what precise point he cited it, and this very case follows the Sommersett case, which he says was judicial legislation, in which the United States court decides that slavery only exists by municipal or positive law, that the honorable Senator did not read that portion to the Senate. It was not his purpose to do so. I find no fault because he did not. I only say it seemed to me a little singular that he should not have cited the authority of the highest court of the Union, when he launched out afterwards, I think, or before, no matter which, in so eloquent and so high a eulogium upon that court. In another particular I was a little surprised. When he commented upon the case of the slave Grace, decided by Lord Stowell, he read from some book-I do not understand from what-a letter from Mr. Justice Story approving of the decision in that case, and saying he would have decided it as Lord Stowell had decided it. Now, I want to say to the Senator that this case of Prigg vs. The Commonwealth of Pennsylvania, was decided when Mr. Justice Story was upon the bench; ay, sir, Mr. Justice Story himself, delivered the opinion

of the court.

Mr. BENJAMIN. I said so.

Mr. CLARK. Did the honorable Senator say so the other day?

Mr. BENJAMIN. I did in my speech.
Mr. CLARK. On that point?

Mr. BENJAMIN. Yes.

Mr. CLARK. I understood him not to allude to that point at all. He may have said that Justice Story delivered the opinion of the court; but he did not tell the Senate that Mr. Justice Story decided that slavery existed only by positive municipal law. I think the gentleman will not say

he said that.

Mr. BENJAMIN. I did not say that, because I never did understand him so to decide. Mr. CLARK. Then we will read the decision. I will read first from the caption:

"By the general law of nations no nation is bound to recognize the state of slavery as to foreign slaves within its territorial dominions, when it is opposed to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a meré municipal regulation; founded upon"

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law, four years before the Declaration of Independence, so that if that was the true law of England, if that was the state of the common law, we did not take slavery by the common law, but we took it by the force of the territorial law. Judge Story, in this decision, continues:

"It is manifest from this consideration, that if the Constitution had not contained this clause-"

That is the clause in regard to fugitives.

"every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits."

Now, Mr. President, I want to ask honorable Senators how this could have been under the Constitution, if the common law brought slavery here, if slavery existed by the common law, which was part of our birthright? If slavery came here by force of the common law, it was carried into every State of the Union where the common law went. What was the necessity of that provision, if by force of the common law the master could get his slave? It was in Pennsylvania as well as in Maryland; and when a slave went from under their statute law in Maryland, and got into Pennsylvania, he was still under the common law; he could not be a freeman because the common law would hold him. But understanding distinctly that the common law did not recognize slavery, the framers of the Constitution put in it that provision, so that slaves should not be set free who did exist, but which did not recognize slavery. escaped into a free State where the common law They inserted that provision in the Constitution in order that fugitive slaves might be returned into the States from which they came..

This is the decision of the highest court of the nation. I do not know that it has ever been overruled, unless it was overruled by the Dred Scott opinion, and that does not overrule it in terms. Here is a case decided in 1842, fifteen years after the case of the slave Grace. It was not before the decision of that case, which the honorable Senator from Louisiana says Justice Story approved. It was fifteen years after that matter had been brought to his knowledge, and his attention had been turned to it. What is remarkable here is, that the court did not all concur in the reasoning of Mr. Justice Story; they did not all concur in all the points he made, and the other judges went on serialim, one after another, to give opinions and reasons, and yet not one of the judges dissented from Mr. Justice Story upon this point. They all concurred in it; and Mr. Chief Justice Taney that now is, was then upon the bench when this case was decided, and he did not dissent from that part of it. I think there is not to be found, in Mr. Justice Taney's opinion, that there was a solitary That is it" founded upon." It is a very curi- dictum on which he dissented upon that part of Mr. Justice Story's opinion. ous expression: I have here another case. I am following the order of time. I have got up to the highest court of the nation. I am not beginning with the lower and going up to the higher by different grades of authority, but I am following the order of time. I have given the case of Prigg vs. The Commonwealth of Pennsylvania, in 1842. What is remarkable is that you find these cases as well in the slave States as everywhere else. I hold in my hand 9 Georgia Reports, in which I find a very remarkable case-that of Neal vs. Farmerwhere the judge goes into the matter with great research and great learning. I should differ from him in some of his conclusions, for reasons which will be obvious when I come to read the opinion. This is a case in the State of Georgia, which is decided on the ground that slavery did not exist by the common law, but existed by the various statutes passed in England for the Colonies, and by the statutes passed by the Colonies themselves. The case was very maturely considered. presume the honorable Senator from Louisiana has seen it, though I did not understand him to take any notice of it.

Mr. BENJAMIN. I will merely suggest to the gentleman that I can furnish him with a hundred cases to the same effect in the slave States.

Mr. CLARK. I dare say the gentleman is much more learned than I am upon this point. I dare say he might meet me two to one in bringing forward cases. I am not surprised, because it was not his object to show that slavery did not exist by the common law, but to show that it did,

that he left behind the hundred cases he said he could furnish, and brought the others.

The second note or point in the caption of this case in 9 Georgia Reports, 555, is this:

"African slavery held never to have existed in the Island of Great Britain by the common law, by statute, or by the law of nations."

The point made in this case was this: a negro had been killed, and the qaestion material to decide was, whether that killing was felony or not. Counsel endeavored to show that slavery did exist by the common law, and that by the common law it was felony to kill a man; and therefore it was felony to kill the negro; but the court held the contrary, that slavery never did exist by the common law, nor by statute law in England, and passed a decision on that point. They afterwards go on to give the origin of slavery; and to that part of the case I shall address myself by and by. Let me say that here is a discussion of this decision of that other interesting subject which the Senator so complacently alluded to the other day, that of villeins regardant and villeins in gross. The whole doctrine was stated by the Senator, and he told the rest of the Senators where they could find it. Here it is, not in England, but in our own midst, in the State of Georgia, examined in connection with negro slavery in England, and a decision solemnly rendered that slavery does not exist by the common law. The court say further:

"We look in vain, certainly, to the common law for traces of Saxon slavery as an institution under its protection." The opinion was delivered by Judge Nisbet: "By the court-Nisbet, Judge, delivering the opinion." "But I apprehend that a judge, sitting to determine what was the status of the slave under the common law, can derive from its consideration no light to guide him, because I consider that the common law recognizes but one species of slavery as having existed in England under its sanction, at any time, and that is rilleinage."

No other slavery existed by the common law in England, says the court, at any time. The court say further on in the opinion:

"The unconditional slavery of the African race, as it exists in Georgia, never did exist in Great Britain. I do not mean, of course, in the British Empire, but in the Island of Great Britain. It has never had a status under the common law."

Then the court, further on, say:

"I now consider the decisions of the English courts"The court reviewed all the English decisions on that point.

upon the subject of slavery, and I think it will be seen that slavery has never been recognized to exist there, under the common law. On the contrary, it is well settled, that the moment a slave, whether African, Indian, Jew, or Gentile, sets his foot upon British soil, he is a freeman, and entitled to the protecuon of the laws as such."

The court say in this case:

"The question is, did this fact recognize slavery in England, as an institution under the protection of the common law?"

That is, the fact that slavery was recognized by the law of nations. England had recognized slavery as a part of the law of nations, and the court go on to consider the question whether, having recognized slavery as a part of the law of nations, it made a part of her common law; and they say:

"The question is, did this fact recognize slavery in England as an institution under the protection of the common law? Clearly, it did not. The laws of nations are recognized by the municipal laws, and will be enforced upon the citizens and subjects of the States parties thereto, in all cases when a question arises which is the object of their jurisdiction. They are recognized by the common law. (4 Black. Com. 67, &c.) The law of nations tolerated, but did not enjoin the slave trade. The obligation of England under it was, to respect the rights of those States engaged in it, within their own territories, and upon the high seas. Vessels engaged in the traffic were not liable to seizure and confiscation. Her subjects were also equally entitled to protection under the international law. I apprehend, however, that it is historically true, that neither by statute nor by usage has Great Britain ever availed herself of the license of the law of nations, to introduce slavery into the Island of Great Britain from Africa. In point of fact, pure slavery never did exist in England, neither by capture in war, by municipal authority, or by the law of nations. Had slaves been introduced into that part of her empire by municipal authority, or had they been introduced without municipal, that is, without statutory authority, under a trade sanctioned by the laws of nations, the status of slavery would have been there just what it is here. Property in the slave, the right to control his person, his limits, as Lord Coke expresses it, would have existed and fallen under the protection of the common law. To any correct view of this subject, it is indispensable to distinguish between Great Britain and her colonies. As to the latter, we know that slavery there did in fact exist, and was sanctioned by usage under the law of nations, and by

acts of Parliament: as to the former, we know that it did not exist there, and received no such sanction. How could, then, the common law attach upon the institution of slavery in the Island of Great Britain? The law of nations would have justified slavery in England, had it been there. But they did not create it there. Whether by the comity of nations the English courts are not bound to deliver a slave, coming into Great Britain from a State where slavery exists by law, to his rightful owner to be taken back, as was the demand in the Sommersett case, is a different question. Lord Mansfield held that they are not.

"Nations being equal, the laws of one State have no operation in any other, proprio vigore."

Then the question arose before the court whether the recognition of slavery and the existence of slavery in the colonies, did not establish it in Eng land; whether, from the fact that Parliament passed certain laws establishing slavery in the colonies, they did not carry it into England? As to that question, the court decide that it certainly did,

not; and they say:

"The recognition of slavery in the colonies did not establish it in England. This is the answer to the conclusion drawn by counsel. The statutes of Great Britain do not apply to the colonics, unless expressly extended to them, and the acts which relate to the colonics alone, have a local operation only. Such has been the ruling of the courts at Westminster Hall. Expressly so held, in reference to these very statutes in Forbes vs. Cochrane, 2 Barn. & Cres., by Best, J., p. 448; 1 Black. Com., 107, 108; 1 Chill. Com. Law, 638.5

Then the court come back to review all the cases in England on this point:

"I return now, [says the judge,] to a review of the decisions in England upon the subject of slavery. The authenticated cases in England before the Sommersett case are five in number, to wit: Butts vs. Penny, in the 28 Charles II."

The same case which the honorable Senator cited. There is also here the case of Smith vs. Gould, in reference to which the court say:

"In Sinith vs. Gould, which was also trover for a negro and other things, the plaintiff had a verdict with several damages, and £30 for the negro. On motion in arrest, the court held that trover could not lie for a negro."'

I did not find that case in Salkeld's Reports. Mr. BENJAMIN. I will state to the Senator that there are two cases in Salkeld, on the same page, on this subject, and he will find that that is one of them.

Mr. CLARK. I have found a case in Salkeld's Reports, some things in which I want to read to the Senator. This is one of the older casesSmith vs. Brown and Cooper:

"The plaintiff declared in an indebitatus assumpsit for 201. for a negro sold by the plaintiff to the defendant, namely, in Parochia beatæ Marie de Arcubus in Warda de Cheape, and verdict for the plaintiff'; and on motion in arrest of judgment, Holt, C. J., held: that as soon as a negro comes into England he becomes free: one may be a villein in England, but not a slave. Et per Powell, J. In a villein the owner has a property, but it is an inheritance; in a word, he has a property, but it is a chattel real; the law took no notice of a negro."

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Gould, which covers the whole ground. I have never seen anything so succinctly stated. It resembles some of those old maxims of the common law:

"Sed curia contra, men may be the owners, and, therefore, cannot be the subject of property."

Man may own, but he cannot be owned. That is the doctrine of the case.

Mr. BENJAMIN. What becomes of the villeins?

Mr. CLARK. Now, Mr. President, I have done with that part of my argument which relates to the common law. I think I have shown that slavery did not exist by the common law. If it did not exist by the common law, it could not be brought here by the common law from England,

and did not exist here. If it did not exist here

by the common law, then, if it existed at all, it existed by the municipal law-the positive law of the State. Wherever there was a positive law on the subject, regarding the slave as property, there he was property. Wherever there was no municipal law, no law upon the subject making him a slave, there he was a freeman. Hence the pertinency of that provision of the Constitution, which was a matter of compromise, in regard to the fugitive slave. If in Virginia and Maryland a slave is held by the force of positive law, custom, or statute, and he escape and goes into the State of Pennsylvania, or any other State where he is not held as a slave, where slavery does not exist, without a provision that he should be returned under the Constitution, he would be free; and, therefore, the framers of the Constitution inserted in it that provision.

Our courts have repeatedly held, and have recently held in New York, Massachusetts, everywhere, that if a slave is carried voluntarily by his master into a free State, he cannot take him back again. If slavery existed by the common law, the master would have a right over him, and he could take him back just as he could his horse, or his cow. He could lay his hands upon him and say: you are my property under the common law; come along with me.

"You would not want

a fugitive slave law to get him if slavery existed by the common law. You never have had a fugitive slave law for a horse or a sheep. It was only because that by the common law the slave, when he gets from under the statute-law, is free, that this provision of the Constitution was adopted.

This case in Georgia, and some other cases, go to the point to show that slavery was not estab lished by the law of nations. The law of nations, as I said, does not go so far as to make positive law for any State. For instance, England may

Mr. BENJAMIN. Read it all.

Mr. CLARK. I will read it all. Chief Justice Holt says:

the law of nations, Spain may recognize them, France may recognize them, the whole world may recognize them by the law of nations; and yet, if New Hampshire does not recognize them, the law of nations cannot force them upon her. The law of nations regulates the rules and the proceed

In England there could have been no sale of a negro, for he would have been a freeman; but the slave being in Virginia, he could be sold though the sale was made in London.

"Then the Attorney General coming in, said, they were inheritances, and transferable by deed, and not without; and nothing was done."

I do not think that is authority for the other side. Here the same case comes up in another shape in Smith vs. Gould, in trover. In the case which I have just quoted they tried an assumpsit, and could not succeed in that, because there was not such a thing as a slave in England, by the common law. They then tried trover, and the court held that trover lies not for a negro; but in a suit of trespass, quare captivum suum cepit, if in technical form, the court intimated that the plaintiff might have succeeded.

I want to call the attention of honorable Senators to one expression in this case of Smith vs.

within a nation and make anything a part of its institutions, and force on that nation what does not otherwise exist by its own law. So, if slavery and the slave trade exist by the law of nations, that law of nations does not have the force of carrying slavery into any Territory where it does not exist, but only regulates the law as between those nations. Each nation is at liberty to regulate its own law. The United States undoubtedly recognized the slave trade as part of the law of nations up to a certain time. I think it recognizes it now as part of the law of some nations but she has prohibited it herself, and the law of nations does not have such effect as to compel her to have it here. No such force is given to it; and notwithstanding all the nations in Christendom, except the United States, may have recognized slavery, yet if the United States had not recog nized it, it does not bring it here; and if some of those United States have recognized it, it does not carry it into States which have not recognized it. It has no force to bring it into free territory, because recognized in Virginia, or because Virginia recognized the law of nations. It does not have any such force. Each nation stands by itself upon its own laws regulating its own domestic concerns, and then there are certain laws,

rules, and regulations, called the law of nations, which regulate the intercourse of nations.

With these remarks upon that point of the case I dismiss it. I have some further remarks to make upon this case in Georgia, because it goes further than any case I have found. It goes on to point out the way in which property in slaves was acquired, and to give, in fact, the foundation of the law for holding property in slaves, or holding negroes as slaves:

"The faculty of holding slaves [say the court] was derived from the trustees of the colony, acting under authority of the British Crown, as a civil right, in 1751, by an ordinance of that board. Before that time, their introduction was prohibited."

Remember that this is a decision in the State of Georgia:

"The regulation of slave property is as much the province of municipal law, as the regulation of any other property, and its protection equally its obligation; but we deny that property in slaves, and the title by which they are held, are the creations of statutory law. To view this question fairly, let the inquiry go back to a period subsequent to the ordinance of the trustees, in 1751, and anterior to any legislation upon the subject of slavery. Licensed to hold slave property, the Georgia planter held the slave as a chattel; and whence did he derive his title? Either directly from the slave-trader, or from those who held under him, and he from

the slave captor in Africa. The property in the slave in the planter, became thus just the property of the original captor. In the absence of any statutory limitation upon that propperty, he holds it as unqualifiedly as the first proprietor held it."

Exactly. Nobody doubts that. Nobody in the world that I know of can doubt that the slaveholder has just as good a right to the negro slave as the man who stole him and brought him away from his country, and the slave trader. Here is the foundation of this business which all Christian nations have carried on. They go back to the slave captor, to the man who stole him in Africa, or to the slave trader, and they say the slaveholder has just as good a right to the slave as the captor or the slave trader. I grant you that, or any other robber or pirate, but not better. I do not mean by this, Mr. President, by any means that the people who own slaves are pirates or robbers; I am only speaking of the solidity of the title. It rests exactly upon the title of the captor who makes war upon the African and takes him away, or of the slave trader who is declared to be a pirate. That is exactly the title of the slaveholder to the slave, and he has no other. In many cases the negro gets into the hands of people who are not to blame. I will not condemn any man, or any class of men. I am discussing the abstract principle upon which the title to the slave rests. It rests upon the right of the captor-" you are my negro, my slave; take him away; ship him in irons, and carry him away, and sell him." Now, Mr. President, (Mr. FITCH in the chair,) if were to go into Indiana, and take your horse and bring him here, and I should sell him to the honorable Senator from Ohio, he would have just as good a right to him as I had, and not any better; he is your horse for all that. So it is with the man who deals with the slave, either as captor or trader. He has not any more title than that.

This is the sort of property that they want to carry into this new State. I come to another question, Mr. President: who is going to do it? They say the Dred Scott decision has carried it there already. Well, that will not operate after we form it as a State. Here in this Lecompton constitution is a provision that slaves are to be carried into that State by authority of that constitution. Who gives that constitution vitality? The people in the Territory? Not at all. That constitution is not worth the paper on which it is written until we breathe the breath of life into it and make it our child. 1, for one, am not going to breathe upon it. It may remain a dead carcass for me for many generations. It cannot exist unless we put it in force. There is a great deal of talk about this being the constitution of the people of Kansas. Well, admitting that they formed its shape, sanctioned its provisions, put the words together; still Congress has got to breathe life into it, and slavery will not exist there under that constitution unless you put it there. You cannot escape it. Now I do not will it. I do not think I shall.

At this point, Mr. President, I desire to make a few observations in regard to this notion of popular sovereignty, and squatter sovereignty, as these words are used now. I think I see pretty clearly what authority there is here in regard to

SENATE.

this matter, and I think I see that under the Con- faithfully to them. That Territory belongs to the stitution of the United States this talk about squat-people of the United States. I do not understand ter sovereignty does not amount to very much. what particular right those people who go into it There has been a good deal of talk about popular get, any further than is given by Congress and sovereignty in the people of a Territory; there has conferred by law; they are in there under the law; been talk of sovereignty in abeyance; and there and when Congress gives them the right and has been talk about man being sovereign. Well, power to establish a sovereign State, then, as citsir, every free man is sovereign; but sovereign izens of the State, they become sovereigns just over what? Sovereign over what he owns, and so far as citizens of an independent State are what he has a right to control. He is not sover- sovereigns, being permitted and having the right eign over what is mine, nor what is yours; nor then to do what a sovereign State may do, but is he sovereign over what belongs to any of these having no right to contravene the power of ConStates; nor is he sovereign over what belongs to gress in the General Government under the Conthe United States. He is sovereign over his own stitution. and ought to be sovereign over himself, though sometimes he is not.

Thus much, Mr. President, for the law. I now come to more general considerations which are Well, sir, let us look at this matter as it stands. going to govern me in regard to the vote I may Here was this Territory known as the Louisi- give. I said a short time ago-I said it deliberana Territory, afterwards as the Missouri Ter- ately, I said it upon mature conviction, I said it ritory, which was purchased from France in under the full knowledge of what I did say, as 1803 for a certain number of dollars. Mr. Presi- something which I mean to stand by without comdent, I want to ask you, I want to ask every hon-mitting anybody else—that I do object to Kansas orable Senator who hears me, this plain question: when the people bought that Territory in 1803, to whom did it belong? Why, to the United States, everybody will say. Very well. They, owning the soil, had jurisdiction. The United States were the sovereigns in that Territory. It was theirs. Did anybody else own a foot of it? Had anybody else any jurisdiction over it? Not at all. It belonged to the United States. I do not mean, as some say, to the people of the United States individually; that A owed his share, B his share, C his share, and so on with the rest of the alpha- | bet; but I mean the United States, as a Government, owned it; it was theirs. They had sovereign power over it under the Constitution. They could control it; they have controlled it, and I do not see that anybody else had any control over it.

Then the people of the Territory of Kansas go into that Territory, and before you allow them to pass territorial laws or territorial enactments, they have no authority, no jurisdiction over it. It belongs to the people of the United States. Then, by your territorial laws, by your Kansas-Nebraska act, you authorized the people in that Territory to do certain things. Then you invested them with some authority, and they went on and did them with your authority. They derived their authority from the Government of the United States. Nobody else had any authority. You granted it to them. They hold it under you, and cannot get any more authority than they now have under the territorial laws, unless you give it to them. What is the idea of talking about their being sovereigns in the Territory? Do they own anything there? Have they any jurisdiction except what you give them? They go there by your permission. They hold that Territory by your permission. Ah! but you say, we are the sovereign people. Very well-true; but you are sovereign over what you own and what belongs to you, and oyer nothing more. You have in that Territory just what Congress has granted you, and nothing more. When Congress gives you power to establish a State, then you will be the people of a sovereign State and have power belonging to a State; but you will not have it if Congress does not give it to you. You exist by their authority until Congress gives you permission to become a State. When Congress has given you jurisdiction over the territorial government and made you a State, then it is yours, just as you have jurisdiction over my horse when I give or sell him to you. Congress empowers the people of the Territory to go into it and do certain things, and when a sufficient number get into the Territory and petition for State jurisdiction, then Congress may authorize them to make a State government and transfer their jurisdiction to them; and it then belongs to them as a sovereign State.

Talk about the people having a right to State government! It depends upon what you mean by right. If you mean to say any power to assert, then they have not got it. If you mean' that Congress ought, under the Kansas-Nebraska act, following out the policy of exercising its sound discretion, to erect them into a State, then I agree with you entirely, they have the right. Congress can hold out that inducement to the people under the Kansas-Nebraska act, and it should keep it

coming into the Union as a slave State. I object to slavery going into that Territory now, henceforth, and forever, unless the sovereign people, after it is made a State, in virtue of their sovereign power, choose to carry it there; and I had almost said that I then would have objection to it, because that State was a part of the territory covered by the old Missouri compromise. You forced that compromise, Mr. President. The people of the North did not want to take it; they did not want slavery to go into Missouri; they wanted that to be free territory; but at the time she was about to be admitted as a slave State, you put in a provision that all the rest of that territory should be free. Why have you not kept it? Why has not that compact, if you call it a compact, been kept? Why this agitation growing out of the question to force slavery in there? Do you tell me that that compromise was unconstitutional? Suppose it was:, I ask whether, when you made that provision and agreed fairly to it at that time it now becomes you, if you can do it bythe form of law, to wrest that territory from freemen? That is the point I make. I want to know why there has not been honor enough in the people of the other side to maintain that pledge, even if they were not obliged to do so, when they forced that division of the Territory, and said slavery should not go to Kansas? I want to know why the other side are not willing now that that should be a free State?

Mr. President, it cannot be denied-I will not undertake to deny it-that on this side is a contest for freedom, and on that side is a contest for slavery. That is the great contest between us. I like to meet this matter plainly. I have no concealments; nothing to deny. It is the great cause of free labor against slave labor; and it is the cause of free labor in that Territory or State against slave labor. I do not come here without a reason. I think I have a reason, coming here as a Senator, exercising a sound discretion, looking for the welfare of the old States, why slavery should not go into Kansas; because if slaves go there, they get an undue representation. By the Constitution, in a slave State you add a certain portion of the slaves to make up your representation. Five slaves are equal to three white men for that purpose. If slavery goes into Kansas, you will reckon the slaves in the representation; and if you get enough there to elect a Representative, do you not get one vote in the other House, over and above the other free States, which rightfully you should not have? Hence I object to extending that right of representation. I know that that provision was put in the Constitution by way of compromise. I agree with what the gentleman from Virginia said on that point. Here were thirteen old States. They came together for the purpose of Union. Some of them had slavery, and some had not; and they agreed, under that Constitution, and for all time, that the slave States should have representation so and so; but I do not understand that that binds us to make all the States slave States, or to let slavery go into the free States, or to let States come into this Union with slavery, and thus give them an undue representation over the free States. I object to it on that account.

Mr. President, I object to it for another reason. I am glad now to see the honorable Senator from