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and to expose, as far as I can, the fallacies by which those doctrines are upheld.
I have still, sir, another duty to perform. As a member of that committee which is charged in the Senate with the examination of all subjects touching the judiciary of the country, it is my duty to make answer to those charges which are brought against the highest judges of the land with a violence, a recklessness, and, I regret to be compelled to add, with a disregard of truth and decency which will yet bring down upon their authors the indignant condemnation of their outraged countrymen.
Mr. President, the whole subject of slavery, so far as it is involved in the issue now before the country, is narrowed down at last to a controversy on the solitary point, whether it be competent for the Congress of the United States, directly or indirectly, to exclude slavery from the Territories of the Union. The Supreme Court of the United States first effort to support that negation by argument, independently, of the have given a negative answer to this proposition, and it shall be lates authority of the decision. 'n It: seems to me that the radical, fundamental error which underlies the argument in affirmation of this power, is the assumption that slavery is the creature of the statute law of the several States where it is established; that it has no existence outside of the limits of those States; that slaves are not property beyond those limits; and that property in slaves is neither recognised nor protected by the Constitution of the United States, nor by international law, I controvert all these propositions, and shall proceed at once to my argument.
Mr. President, the thirteen colonies which, on the 4th of July, 1776, asserted their independence, were British colonies, governed by British laws. Our ancestors, in their emigration to this country, brought with them the common law of England as their birthright. They adopted its principles for their government so far as it was not incompatible with the peculiarities of their situation in a rude and unsettled country, Great Britain then having the sovereignty over the colonies, possessed undoubted power to regulate their institutions, to control their commerce, and to give laws to their intercourse, both with the mother country and the other nations of the earth. If I can show, as I hope
le able to establish to the satisfaction of the Senate, that the nation thus exercising sovereign power over these thirteen colonies did establish' slavery in them, did maintain and protect the institution, did originate and carry on the slave trade, did support and foster that trade, that it forbade the colonies permission either to emancipate or export their slaves, that it prohibited them from inaugurating any legislation in diminution or discouragement of the institution--nay, sir, more, if at the date of our Revolution I can show that African slavery existed in England as it did on this continent, if I can show that slaves were sold upon the slave mart, in the Exchange and other public places of resort in the city of London as they were on this continent, then I shall not hazard too much in the assertion that slavery, was the common law
7, of the thirteen States of the Confederacy at the time they burst the bonds that united them to the mother country to fill the
The first permanent colonial settlement made on this continent by the English was made under a charter granted in 1606, in the fourth year of James I, to Sir Thomas Gates and his associates. I leave out of view, as a matter of course, the few abortive attempts that were made towards the close of the sixteenth century by Sir Gilbert Humphreys in the north, and by Sir Walter Raleigh in the State which is represented by my friend from Virginia. Those attempts were all abortive. It is familiar to us all how disastrously, they terminated. I say the first permanent settlement made under the authority of the British Crown on this continent, was under the charter of 1606. That charter was subsequently superseded upon quo warranto, issued at the instance of the British Crown, and in 1620 another charter took its place, granted to the Duke of Lenox and his associates, who were incorporated under the name of the Plymouth Company. To that company the coast was granted from the fortieth to the forty-eighth degree of north latitude. This charter was followed by successive grants to different noblemen and companies, until the entire coast was disposed of. In 1664, to the Duke of York was granted all the territory as far south as Delaware Bay; and in 1663 and 1666, to Lord Clarendon and his associates the entire coast of the continent, from the twenty-ninth degree of north latitude to that celebrated line of 36° 30' north, since 80 famous in the history of our intestine disputes. Thus was conveyed the whole coast comprised within our present limits. - Prior to this very first settlement, the slave trade had been inaugurated and established in Great Britain. The first notice which history gives us of it is the grant of a charter by Queen Elizabeth, to a company formed for the purpose of supplying slaves to the Spanish-American colonies. The Virgin Queen herself was a share-holder. Subsequently, in 1662, under Charles II, a monopoly was created in favor of a company authorized to export to the colonies three thousand slaves per annum; and so valuable was this privilege considered, so great was the influence required for the purpose of obtaining a share in it, that it was placed under the auspices of the Queen Dowager and the Duke of York. The King himself issued his proclamation, inviting his subjects to establish themselves on this side of the Atlantic; and as an encouragement to the migration, tendered a grant of one hundred acres of land for each four slaves that they would employ in the cultivation of it.
The merchants of London found their trade to the slave coast very much cramped by this royal monopoly, granted to royal favorites; and they continued to stun the ear of the Commons with loud complaints that they were excluded from the advantages of so prosperous a traffic; and in 1695 the Commons of England, in Committee of the Whole, resolved, “That for the better supply of the plantations, all the subjects of Great Britain should have liberty to trade in Africa for negroes, with such limits as should be prescribed by Parliament."
In the 9th and 10th William III, an act was passed partially relaxing this monopoly, the preamble to which states that
“The trade was highly beneficial and advantageous to the kingdom, and to the plantations and colonies thereunto belonging.”'
This partial relaxation was unsatisfactory. Petitions continued to pour in. In 1708 the Commons again resolved
"That the trade was important, and ought to be free and open to all the Queen's subjects trading from Great Britain."
And in 1711 they again' resolved that this trade ought to be free in a regulated company, the plantations ought to be supplied with negroes at reasonable rates; a considerable stock was necessary for carrying on the trade to the best advantage, and that an export of £100,000 at least, in merchandise, should be annually made from Great Britain to Africa.". Finally, in the year 1749, these repeated resolutions of the Commons, and petitions of the merchants of London, ac complished the desired result. They gained their object by the passage of the act of 23d George II, throwing open the trade, and declaring “the slave trade to be very advantageous to Great Britain, and necessary for supplying the plantations and colonies thereunto belonging with a sufficient number of negroes át reasonable rates.”
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 Gov
à ernors 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.
În 1774, in spite of this discountenancing action of the mother Government, two bills passed the Legislative Assembly of Jainaica; 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 answer to a rémonstrance from the agent of the colonies, replied:
"We cannot allow the colonies to check or discourage in any degree a traffic só beneficial to the nation.".1
I say, then, that down to the very moment when our independence was won, slavery, established by the statute law of England, had become 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 recognised 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, 1813, 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, 4,800 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 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 London, (sée 2 Haggard's Rep., p. 105,) 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 owner of a slave in England?"" and this is the answer of legal functionaries. They certified that "a slave
se two 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 Hard
wicke, '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 the case known as the celebrated Sommersett case, subverted the common say it not on my own author coislation, as I shall prove in an instant. I Senator from Maine (Mr. F ESSENDEN) need not smile at my statement. I will give him higher authority than anything I can dare assert. I say, that in 1771' Dord 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 legis lation 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 three terms, Lord Mansfield mustered up courage to say what I have just 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 of that fanaticism which is now perverting the principles and obscuring the judgment of the people of the North, and of whose effects, I must say, there is no more striking example to be found than is exhibited by its influence 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 common law of England, has won for himself the proudest name in the annals of her jurisprudencethe gentleman knows well that I refer to Lord Stowell. As late as