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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.
I desire to call the attention of the Senate to some passages in that celebrated decision, in answer to another proposition which the Senators who are opposing this bill assume in nearly all their arguments, and; that is that slavery is the creature of positive legislation, and cannot be established by customary law or usage. That point was raised in this case, and Lord Stowell thus disposed of it;
“Having adverted to most of the objections that arise to the revival of slavery in the colonies, I have first to observe that it returns upon the slave by the same title by which it grew up originally. It never was in Antigua the creature of law, but of that custom which operates with the force of law; and when it is cried out that malus usus abolendus est, it is first to be proved that, even in the consideration of England, the use of slavery is considered as a malus usus in the colonies. Is that, a malus usus which the court of the king's privy council and the courts of chancery are every day carrying into full effect in all considerations of erty—in the one by appeal, and in the other by original causes and all this enjoined and confirmed by statutes? Still less is it to be considered as a malus usus in the colonies themselves, where it has been incorporated into full life and establishment--where it is the system of the State and of every individual in it; and fifty years have passed without any authorized condemnation of it in England as a malus usus in the colonies."
This, sir, was fifty years after Lord Mansfield's speech in the Sommersett case.
"The fact is, that in England, where villenage of both sorts went into total decay, we had. communication with no other country; and, therefore, it is triumphantly declared, as I have before observed, 'once a freeman ever a freeman,' there being no other country with which we had immediate connection, which at the time of suppressing that system wę, had any occasion to trouble ourselves about. But slavery was a very favored'introduction' into the colonies; it was deemed a great sonrce of the mercantile interest of the country, and was, on that account, largely considered by the mother country as a great source of its wealth and strength. Treaties were made on that account, and the colonies compelled to submit to those treaties by the authority of this country. This system continued entire. Instead of being condemned as malus usus, it was regarded as a most eminent source of its riches and power. It was at a late period of the last century that it was condemned in England as an institution not fit to exist here, for reasons peculiar to our own condition, but it has been continued in our colonies, favored and supported by our own courts, which have liberally imparted to it their protection and encouragement. To such a system, whilst it is supported, I rather feel it to be too strong to apply the maxim, malus usus abolendus est. The time may come when this institution may fall in the colonies, as other institutions have done in other flourishing countries; but I am of opinion it can only be effected at the joint expense of both countries, for it is in a peculiar manner the crime of this country; and I rather feel it to be an objection to this species of emancipation, that it is intended to be a very cheap measure here by throwing the whole expensé upon the country.”—2 Haggard's Reports, 126 et seq.
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 are extracts from his answer:
"I have read, with great attention, your judgment in the slave case. Upon the fullest cone sideration 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 the whole continent of North and South America alike. Why, Mr. President, the European continental powers, which joined and co-operated with Great Britain in the discovery and establishment of colonies on this continent, all followed the same views of policy. France, Spain, Portugal, and England, occupied the whole continent, North and South. The legislation of all of them was the
Louis XIII,, by royal edict, established slavery in all his colonies in America. Everybody knows that it was through the interference of Las Casas that the Spanish Crown inaugurated the slave trade with a view of substituting the servile labor of the African for that of the Indians, who had been reduced to slavery by their Spanish conquerors. As regards Portugal, she inaugurated the trade; she originally supplied all the colonies; and the Empire of Brazil to-day, with its servile labor, is the legitimate fruit of the colonial policy of the Portuguese Government in the sixteenth century. She began her trade in 1508, and some authors say even before the colonization of America in the fifteenth century.
I say that slavery was thus the common recognised institution of the New World. I do not thereby mean to admit for a moment that it was not the common law of the Old World when this nation was formed. Have we all forgotten that white slavery existed in England until a comparatively very recent period? It did not finally disappear until the reign of James II. What was that system of villenage, of which all the old law-writers speak? They were all slaves. These villeins were divided into two classes--villeins-regardant and villeins in grossboth slaves. The only difference between them was, that the villeinsregardant were attached to the soil; they could not be sold away from the glebe; they followed the conveyance of the estate into the hands of the new lord; but the villeins in gross were mere chattels, sold from hand to hand, just as negroes are sold at the present hour. If any gentleman is curious to see something on this subject, he will find a concise account of it in the first volume of the celebrated treatise of Mr. Spence, on the equity jurisdiction of the courts of chancery. That volume contains a very concise and admirable history of the English law. He will find there some statements in relation to the law of villenage in En
gland. But, sir, a true picture, a fair picture of the state of the villeins of England, is nowhere better given than in the celebrated argument of Hargrave, the great lawyer who was the counsel for the slave in the Sommersett case. One passage will give us his description of what the villein was under the common law of England:
“The condition of a villein had most of the incidents which I have before described in giving the idea of slavery in general. His service was uncertain and indeterminate, such as his lord thought fit to require; or, as some of our ancient writers express it, he knew not in the evening what he was to do in the morning; he was bound to do whatever he was commanded. He was liable to beating, imprisonment, and every other chastisement his lord might prescribe, except killing and maiming. He was incapable of acquiring property for his own bencfit, the rule being 'quicquid acquiritur servo, acquiritur domino. He was himself the subject of property; as such, saleable and transmissible. If he was a villein-regardant, he passed with the manor or land to which he was annexed, but might be severed at the pleasure of his lord. If he was a villein in gross, he was a hereditament or a chattel real, according to his lord's interest; being descendible to the 'heir where the lord was absolute owner, and transmissible to the executor where the lord had only a term of years in him. Lastly, the slavery extended to the issue, if both parents were villeins, or if the father was a villein; our law deriving the condition of the child from that of the father, contrary to the Roman law, in which the rule was 'partus sequitur ventrem.' The origin of villenage is principally to be derived from the wars between our British, Saxon, Danish and Norman ancestors, whilst they were contending for the possession of this country. Judge Fitzherbert,' in his reading on the fourth of Edw. I, stat. 1, entitled 'extenta manerii,' supposes villenage to have commenced at the Conquest, by the distribution then made of the forfeited lands, and of the vanquished inhabitants resident upon them. But there were many bondmen in England before the Conquest, as appears by the Anglo-Saxon laws regulating them; and therefore it would be nearer the truth to attribute the origin of villeins as well to the preceding wars and revolutions in this country as to the effects of the Conquest.”—20 Howell's State Trials, pp. 36-7.
I say, then, sir, that white slavery was protected by the common law of England down to James II; and if any man is peculiarly curious to learn the process by which it
hisappeared, and has any taste for antiquarian lore, if he will look to the appendix to the twentieth volume of Howell's State Trials, he will find a commission issued by Queen Elizabeth to Cecil, Lord Burleigh, and Sir William Mildmay, giving them authority to go into her counties of Gloucester, Cornwall, Devon, and Somerset, and there to manumit her slaves, by getting from them a reasonable price for their liberty. That is the way slavery was abolished in England. It was abolished by the gradual emancipation of the slaves, resulting from the sale by the lord, to the slave himself, of his right over him. I will read a passage of this commission:
ELIZABETH, by the grace of God, &c. To our right trustie and well-beloved counsellor, şir W. Cecill of the Garter Knighte, lord Burghley and
Highe Treasorér of England, and to our trustie and right well-beloved counsellor, sir Walter Milāmay, Knight, chauncellor, and under treasorer of our exchequer, greetinge. in blode and regardaunt to divers and sundrie
and possessions within our realm of Whereas, divers and sundrie of our poore faithfull and loyal subjectes, being borne bonde England, have made hùmble suýte into us to be manumysed, enfraunchised, and made free with theire children and sequells, by reason whereof they, theire children and sequells, may become more apte and fitte members for the service of us and of our commonwealthe.
“We therefore, having tender consideration of their said sute, and well considering the same to be acceptable to Almightie God”
Now, we all suppose she is going to give them their freedom. . Not at all. She is willing to sell them to themselves at a fair price; and so she goes on:
"And we do commytt and give unto you full power and authoritie by these presents, to accepte, admitte and receive to be manumysed, enfraunchised, and made free, suche and so many of our
literature of that
bondmen and bondwomen in blood, with all and every theire children and sequells, theire gpodes, landes, tenementes, and hereditaments, as are now apperteynynge or regardaunte to all or any of our manors, landes, tenementes, possessions, or hereditaments within the said several counties of Cornwall, Devón, Somersett, and Gloucester, as to you by your discretions shall seme mete and convenient, conipoundinge with them for suche reasonable fines or sommes of the possessions, and enjoying of all and singular theire landes, tenementes, hereditaments,
to goodes and chattells whatsoever, as you and they can agree for the same after your wisdomes and discretions."
Here, then, was slavery in its widest and broadest acceptation, in Great Britain, in the time of Elizabeth, and it never finally disappeared from the kingdom until the reign of James II.
How was it in France? In France they had a system of white slaves of the same kind. There they called them gens de main morte-mortmain people, because they belonged to the estates; and they, in 1779, were enfranchised by royal edict, commencing in these words:
“We have been greatly affected by the consideration that a large number of our subjects, still attached as-slaves to the glebe, are regarded as forming part of it as it were; that deprived of the liberty of their persons, and of the rights of property, they themselves are considered as the property of their lords; that they have not the consolation of bequeathing their goods, and that, except in a few cases rigorously circumscribed, they cannot even transmit to their own children the fruits of their own labor.'!,
Thus fell the last remnant of white slavery in France in 1779, after our independence. As regards Spain, let any one who is in the habit of reading the
country for the eighteenth century tell me if he remembers a solitary tale or romance of her authors in which some Moorish or negro slave is not introduced as the familiar inmate of the household. The remainder of the European continent is still governed with beneficent sway by the civil law; and all know that that law protects, in every aspect, the relation between master and slave.
Thus, Mr. President, I say, that even if we admit for the moment that by the common law of the nations which colonized this continent, the institution of slavery, at the time of our independence, was dying away by manumissions, either gratuitous or for a price granted by 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
a 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 négro slave. The negro 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 Únion had not passed laws upon the subject to abolish slavery, to subyert 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 legis
lation 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-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, presentatives who flaunt in robes of sanctimonious holiness; who make parade of a cheap philanthropy, exercised at our expense; and who say to all ye now, how holy, how pure we are; you are polluted
men, "Look by the touch of slavery; we are free from it.
I say that was the position of the delegates when they met in'convention, and it was necessary to make provision in relation to slaves. In the northern States slavery was about to be abolished. If Lord Mansfield's decision in the Sommersett case was to be followed as the rule, it was obvious that southern slaves were exposed to being plun, dered, robbed, carried away from their masters. On the other hand, by a compromise between the North and the South, slaves had entered into the representative basis of the country. What was to be done?
the Constitution, "one to guaranty to the South its property-it provided for the return to the southern owner of the slåve that was recognised as his property; another clause for the North, to prevent a disturbance of the representative basis by importation of slaves. The North said to the South, you shall not increase your laboring population by importation after twenty years, because We of the North have an interest in that question; we have agreed they shall be counted in the representative basis, and we want protection as well as you.” That is all the Constitution says on this subject. It guaranties to the South the sanctity of its peculiar property; it protects the North against any abnormal augmentation of the number of slaves in the South which might give them an undue preponderance in the representation of the different States of the Union. ,, ;'!
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 foor, 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. F ESSENDEN.]
Two clauses were put in