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CHAPTER III. LEGAL STATUS OF SLAVERY IN THE UNITED STATES.
It has been a favourite and persistent assertion of Abolitionists, that slavery in America was an exceptional institution, and contrary to the law of nature and nations. They represent it as owing its existence solely to the lex loci of the States where it was legalized by their own legislation; and hence they draw the conclusion, that the moment a slave passed out of one of these States into a free State, or into the territories of the United States, his bondage terminated of itself. Hence, also, they argue that slaveholders had no right to the protection of that species of property in the territories, which were the common possession of the citizens of all the States; and that the federal government could not properly permit the growth of, or recognize, new slave States. Their party cry was: "Freedom is national; slavery is local." It is plain that this proposition is the premise necessary to all the above assumptions. It will now be shown that this proposition is untrue. Slavery in the United States, instead of being the mere creature of lex loci, was founded on a basis as broad as that of the American union, was in full accordance with the law of nature and nations as then recognized by the States and 62 the federal government, and had universal recognition by the force of general law. The exclusion of slavery from any State was legally the exception, owing its validity purely to the lex loci, and to the recognized sovereignty of the States over their own local affairs. Hence, the rights of slaveholders stood valid, of course, in all the common territories of the United States, and everywhere, save where the sovereignty of a non-slaveholding State arrested them within its own borders. This representation is established by the following facts:

First. When the federal government was formed, all the family of European nations was slaveholding; and they all alike held the Africans as unquestioned and legitimate subjects of bondage. The slave trade was held by publick law as legitimate as the trade in corn. It was the subject of treaty stipulations between the several powers; and slave trading companies were formally chartered and protected by all the leading powers. Slaves were declared by the English judges to be merchandise.[45] They were universally held legal prize of war when taken on the high seas.[46] They were recognized subjects of reclamation in forming and executing treaties. Thus, not to go outside of our own history, we find General Washington, in 1783, by order of Congress, remonstrating with the British commander evacuating New York city, because certain officers of the retiring forces carried away with them the fugitive slaves of American citizens; and the latter was compelled 63 to surrender the attempt, as an unauthorized spoliation of property.[47] In 1788, the Government of the United States claimed of Spain the return of fugitive slaves from the Spanish colony of Florida;[48] and our government promised, in return, the rendition of Spanish slaves found in the United States. It is well known that the treaty of the United States with Great Britain, negotiated by Mr. Jay, and ratified by President Washington, and the treaty of Ghent, in 1815, both secured indemnities for slaves of American citizens abducted during the two wars; thus treating them as property under the protection of national law in America, and of the law of nations. In face of this array of facts, we boldly ask, with what face it can be asserted that slavery was not recognized by international law? Whether it is not as consonant with the law of nature as of nations, will appear at another place.

Second. During the whole planting and growth of the British colonies in America, and at the time when they passed from that government into the federal union, the Empire of Great Britain was slaveholding in all its parts. The obvious consequence is, that the government formed by the thirteen colonies in a part of the territory of that empire, inherited the legal condition of their mother, in this particular. In seceding from that empire, they brought away the slaveholding status; and this subsisted ipso facto, except where it was changed by the lex loci. All the original territory of the American union was slave territory, as was that subsequently 64 acquired from France. Hence slave owners of course possessed their rights in all this territory, unless they were expressly restrained by special legislation of the States, sovereign each one within its own borders. The consequence cannot be denied, if the premise be admitted. Let the reader consider the following evidences of it:

In 1772, only four years before the Declaration of Independence, Lord Mansfield, in the Court of King's Bench, decided the famous Somersett case, by which, it has usually been asserted, slavery was forever terminated in England, and the principle was settled that this relation was inconsistent with her free laws. Mr. Stewart, a citizen of Virginia, going to England on business, carried with him a negro slave, Somersett, whom he had bought in Jamaica. After a time he indicated a purpose to return home, carrying his slave with him; whereupon the negro absconded. His master had him seized, and placed on board a ship in the Thames, to be forcibly carried to Jamaica and sold. The negro then sued out an application for habeas corpus, which being argued at a previous term, was finally decided by Lord Mansfield, at the Trinity term, 1772. The true extent of that decision will hereafter be shown. Our purpose here is to cite the admissions made by the court, as to the existing state of English laws.[49] It is noticeable, that this tribunal exhibited a great reluctance to decide the case, declaring that it was attended with great, and almost inextricable 65 difficulties, and that Lord Mansfield proposed to evade a decision by recommending a compromise between Mr. Stewart and the black. This not being done, the court stated that there were then fifteen thousand negro slaves in England, worth not less than seven hundred thousand pounds sterling. It also recognized the decisions of Sir Philip Yorke, and Lord Chief Justice Talbot, confirmed in 1749, by that of the chancellor, Lord Hardewicke, that if a slave, brought by his master to England, should be detained from him, an action of trover for his recovery would lie; and the decision of Lord Talbot, that a negro slave brought by his master to England from a colony, or baptized by the clergy, did not thereby gain his liberty; and the opinion of the latter that while the Statute of Tenures had abolished manorial villeinage, a white man might still become a villein in gross, by the laws of England.[50] The court declared farther, that the slave property of a debtor was undoubtedly liable to action in the English courts, to recover the sums due a creditor. But after all these admissions, which clearly amount to a recognition of the fact that England itself was then by law a slaveholding country, Lord Mansfield proceeds to settle the principle (the only one, as he carefully declares, to which his decision extends) that the power of the writ of 66 habeas corpus, not being limited to free persons by express statute, should, as he thinks, in England be extended to slaves, when they invoke it, and should be held to override the rights of the master under the laws; because those rights were now regarded as odious and excessive by current publick opinion. Such, and no more, is the extent of this much be praised, and much misunderstood decision! It is plain to common sense, that if it is not an instance of the judicial abuse of making, instead of expounding, law, it only establishes the fact that the laws of slaveholding England were then in a ridiculously inconsistent state.

In fact, not only were there then fifteen thousand negro slaves in England, but they were publickly bought and sold in the markets of London. The prevalence of slavery is attested by another species of historical evidence, very different from that of learned judges, but at least as authentick. The pictures by which Hogarth has fixed the follies and peculiarities of fashionable life on his immortal canvass, frequently contain the African valet; showing that the possession of this species of servants was demanded by high life. From the Normans, those noted slaveholders, to 1775, no statute had been passed upon the subject of personal slavery.[51] There then existed, in the northern part of the kingdom of Great Britain, from thirty thousand to forty thousand persons, of whom the Parliament said, "Many colliers, coal-heavers, and salters, are in a state of slavery, or bondage, bound to the collieries or salt-works 67 where they work, for life, transferable with the collieries and salt-works, when their original masters have no use for them."[52] Again in 1799, they declare that "many colliers and coal-heavers still continue in a state of bondage."

Thus it appears that England was itself slave territory, at the time the thirteen colonies, declaring their independence, brought away her laws and institutions. But our argument of this fact is ex abundantia; it may be waived, and still our conclusion holds, because, by existing laws, all the plantations and colonies of England in America were then, yet more indisputably, slave territory. No stronger proof of this proposition can be imagined, than the manner in which slavery was planted in these communities. Not only were all the thirteen colonies, and all the West India plantations, slaveholding; but it required no statute, either of Parliament or of colonial legislature, to introduce African slavery, or to establish the right of the owner, because it was already established by imperial law and usage. The first negroes were bought in Virginia in 1620; the first act touching their bondage was passed by the Burgesses in 1659; and this does not enact their slavery, but recognizes it as existing. It was not until 1670,[53] that any law was passed which expressly enacted their slavery. But for fifty years they had been unquestioned slaves, had paid impost duty as such, had been bought and sold, had been bequeathed, had been subject of suits. By what law? Obviously by the 68 general law of the British Empire, and of nations. The manner of the introduction of slavery into Massachusetts was the same. "The involuntary servitude of Indians and negroes in the several colonies originated under a law not promulgated by legislation, and rested upon prevalent views of universal jurisprudence, or the law of nations, supported by the express or implied authority of the Home Government."[54] But the "canny" Puritans, more careful than the Virginians to fortify their slave property, enacted slavery of both classes, in their earliest codes of laws, 1641 and 1660.[55]

That African slavery was the universal law of the British colonial empire, is equally plain from the facts already given concerning the legalizing of the slave trade. The treaty of Utrecht secured to Britain a monopoly of that traffick. The Parliament chartered the African Company, with the right to trade in slaves to all the colonies. The Parliament then by statute threw the trade open to all British subjects. The Parliament, by express law, made the property in slaves held in the colonies subject of action in English courts. The Solicitor-General, with Chancellor after Chancellor, decided that residence in England did not emancipate the slave upon his return to his colonial home. The General Court of Massachusetts enacted the same rule, as did the Burgesses of Virginia, again and again; and were never disallowed therein by the king. Even so late as 1827, fifty-five years after the Somersett case, Lord Stowell decided, in the case of the slave Grace, 69 from Antigua, that on her return to the colony, her condition as a slave for life was fully revived.[56] And in the correctness of this decision, we find Mr. Justice Story concurring.[57]

The argument then is, that at the American Revolution all the territory claimed by the thirteen colonies was, by the law of the Empire, and of nations, slaveholding territory. The colonies, in assuming their independence, brought away the rights and institutions which they had inherited as colonial parts of that empire; and whatever prescriptive right was not expressly changed by law, was universally held to survive, as of course. Hence all the territory of the American union was slave territory; and the only mode by which any part became non-slaveholding, was by the exercise of State sovereignty enacting a lex loci, which was only operative within the bounds of the State itself.

Third. The chief territory which the United States acquired between the Revolution and the Mexican war, was Louisiana. This vast region was gained by treaty from France in 1803. It was then a single province and government of the French Republick, and was, through all its extent, a slaveholding country. In the third article of the treaty for its purchase, between the United States and the First Consul, it was stipulated that until the ceded territory should be incorporated, as States, in the union, all its citizens should be "in the mean time maintained and protected in the free enjoyment of their liberty, property, and the religion which 70 they profess." The settled doctrine of the courts of Louisiana has always been, that this guarantee covered all the citizens emigrating into any part of the territory before its erection into a State, as fully as those living in Louisiana in 1803.[58] Thus, the rights of slave owners in the whole of the Louisiana purchase were guaranteed to them by treaty, until such time as the part they inhabited became a sovereign State, and thus assumed plenary power over the subject. But, by Article 6th, § 2d, of the Constitution of the United States, all treaties made by the authority of the United States are declared to be the supreme law of the land. Thus the rights of the master in all this region were placed above the power of the legislature itself.

Fourth. The federal constitution recognized and protected property in slaves, in every way which was competent to a federative compact of this kind. The slaveholding States had representation for three-fifths of their slaves. The slaves were made subjects of direct taxation, as property. The constitution provided expressly for a fugitive slave law, which was soon passed by the Congress, and continued to be the law of the land until the termination of the government. By the constitution, property in slaves was created like any other property; and no ground can be found for the assertion that its rights were more restricted than rights in cattle or lands. But the fundamental idea of that instrument was the impartial equality of all the citizens before the law. Whatever authority Congress had over the common territories, was as trustee for all the citizens 71 of the United States equally. Hence it seems obvious that this body was bound to recognize in all the citizens equal rights, in going into those territories with any species of property which they might hold by the laws of any State, or of Congress, and to protect them in those rights while the country was in a territorial condition.

Finally, these principles have been expressly decided by the highest constitutional authority in the land, as well as by the voice of the most enlightened founders of the government. When the mischievous contest concerning the admission of Missouri was rising in 1819, Mr. Madison declared, concerning the article of the constitution which conferred on Congress its powers over the territories, (Art. 4, § 3,) that "it cannot be well extended beyond a power over the territories as property, and the power to make provisions really needful or necessary for the government of settlers, until ripe for admission into the union."[59] The Supreme Court of the United States, in the well-known case of Dred Scott, decided that Africans were not citizens of the United States in the meaning of the constitution;[60] that property in African slaves was on the same footing under that instrument with other legal property;[61] that the residence of a slave in a territory of the United States did not emancipate him, nor did his residence in a non-slaveholding State for a time, prevent the recurrence of his state of bondage, on his return to the State in which he had been a slave;[62] and that Congress had no 72 power to use its authority to exclude slavery from any part of the territories.[63]

Thus the main proposition with which we set out is abundantly sustained by the history and legislation of the country. Three evasions from this conclusion have been attempted, of which the first is from the language of the Declaration of Independence, in which these famous words occur: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness," etc. The inference is, that the Declaration intended to imply that the slavery of the Africans was a natural wrong incapable of being legalized; and it is claimed that this document is of the organic force of constitutional law to the confederation which then asserted its independence. Both these suppositions are erroneous. As to the latter, it may be justly argued, that the Declaration of Independence was simply what it calls itself: a declaration, a justificatory statement addressed to the world without, and not an act of organic legislation ascertaining the rights of the citizens within. The evidence is, that it enacts nothing save the one point of the independence of the colonies. Neither the Confederation nor the new union formed in 1787 ever based any legislation upon it, save as their acts involved the fact of independence. The constitution made no reference to it; did not ground itself upon it, and did not re?nact it. Hence, let its meaning be what it may, it legislates nothing for or against slavery. 73

But it is too clear to be disputed, that the enslaved African race were not intended to be included, and formed no part of the people who asserted their rights in this Declaration. The evidence is, that if the men who framed it had intended to refer to African slavery, they would have completely stultified themselves. For the majority of them, and of the States which they represented, continued to hold Africans in bondage just as before. A few years after, the same men met in federal convention, and framed the late constitution of the United States; by which property in slaves was protected and perpetuated as before, and traffick in Africans was prolonged until 1808, and made subject of taxation like other merchandise. The States which were emancipating their own Africans, equally with those which retained them in bondage, retained their laws prohibiting the marriage of Africans with whites.[64] Connecticut, until 1796, prohibited free negroes from travelling beyond their township without a pass. New Hampshire, and Congress itself, precluded negroes from serving in the militia.[65] The Declaration of Independence was therefore intended by its framers to assert the liberties of civilized Americans and Englishmen, and not of African barbarians held in bondage. Whether their consistency therein can be defended, is a separate question, to which attention will be given in the proper place. But all publicists are agreed, that the meaning of a document is the document; and that this 74 meaning is to be ascertained by the intentions of those who frame and adopt it.

The second objection to our conclusion is grounded upon the Ordinance of the Confederation, in 1787, by which slavery was prohibited in the North-western Territory ceded to the United States by Virginia. This magnificent domain, including the present States of Ohio, Indiana and Illinois, was conquered from the public enemy in the years 1778-9, by the Commonwealth of Virginia. She sent out her own troops, at her own charges, without either authority or assistance from the Confederation, then also engaged in a war with Great Britain, under her own commission to her heroick son, General George Rogers Clarke. Upon the conquest of the country, she disposed by her own State action of the prisoners of war captured, and annexed the territory to the State of Virginia, which then also included Kentucky. The other States, and the Confederation, uniformly recognized this region as legitimately a part of Virginia. But during and after the war, the States which owned no unsettled territory grew exceedingly jealous of those which possessed such regions, and especially of Virginia. They feared her ulterior grandeur and power. But their expressed plea was, that she, and other States possessed of vacant lands, could pay their share of the common war debt, without taxation, by the sale of these lands, which, as they claimed, were the fruits of the common exertions of the States, while the others would be subjected to an onerous taxation. The North-west Territory had, in fact, been won by Virginia, with her own bow and spear; but at the request of the Congress of the Confederation, 75 she magnanimously laid the splendid prize upon the altar of the common cause, ceding it in 1784 to Congress, for the common behoof of the United States. The Congress of the Confederation passed a long enactment, known as the Ordinance of 1787, providing, in many articles, for its settlement, for its government while a territory, and for the sale of lands. Among these was a clause prohibiting slavery in it. But meantime, the Confederation was superseded by the general government organized under the new constitution of 1787. The first Congress during the administration of General Washington, acting under the article of the constitution already cited for taking and managing the "territory and other property" of the Confederation, passed an act, (August 7th, 1789,) for putting in effect the Ordinance of the Congress of the Confederation, now extinct.

Such is the history of the case. The inference of the objector is, that because the Congress of 1789, acting under the late constitution, claimed power to execute the ordinance of 1787, (passed by the previous and different general government,) with its anti-slavery clause included, therefore that constitution gave it power to exclude slavery from any other territory. But the inference is worthless. For, first, the Congress of the old Confederation had not a particle of constitutional power to adopt such an anti-slavery clause. So declared Mr. Madison emphatically:[66] and so has decided the Supreme Court of the United States.[67] Both these high authorities declare, that if the clause had any 76 validity, it derived it only from the assent of Virginia, who had full sovereignty over the territory, and who accepted and ratified the exclusion by act of her General Assembly, as well as by the mouths of her representatives in the Confederation. And the Congress of 1789, in accepting the conditions imposed by the Ordinance of 1787 on the territory, as valid and abiding, undertook to change nothing, because it regarded that validity as the result of treaty stipulations between Virginia and the other twelve States represented by the old Congress. It conceived itself as having inherited from a previous and different government powers over this particular territory, which it could by no means have originated by its own constitutional authority.[68] Second: The government framed under the new constitution was one of limited powers; and Congress was expressly inhibited, by the instrument which created it, from exercising any authority not granted. But such a power as that to exclude citizens of any of the United States from the common territory, because they proposed to carry there property legalized both by the Constitution of the United States and of their own State, was not granted to Congress. That a government whose very foundation was the equality of the States, should thus attempt to disfranchise some States of a part of their rights, was a solecism too monstrous for these able and enlightened men. Third: When similar cessions of territory were afterwards made by North Carolina and Georgia, these States refused to Congress the privilege of appending to their laws touching 77 these lands, the exclusion of slavery; and Congress obeyed, so framing their enactments as to admit and protect slave-owners. This proves that the exclusion derived its force from the consent of the Sovereign State, and not from the power of Congress.

The third ground of objection which has been advanced against our main proposition, is the doctrine said to have been decided by the Supreme Court of the United States, (as in the case of Prigg against the State of Pennsylvania,) that according to recognized international laws, a nation which does not hold slaves itself is not bound to recognize property in slaves in neighbouring nations, when those slaves come into its borders; and that if a rendition is claimed, it must be asked of comity, or of special stipulation, and not as of international right. The answer is clear and facile. The States of the American union were, initially, as independent nations to each other; and then they were all slaveholding. Each one of them recognized in its own citizens the right of property in slaves; and therefore, if the above doctrine be granted, they could not then, by international law, refuse to recognize it in nations living at amity with them. Again: When they passed out of this condition of absolute independence, into that of federal union, their relations, so far as they ceased to be international, were regulated exclusively by the constitution; and by this constitution the property in slaves was expressly recognized, the rendition of fugitive slaves was expressly required of all the States, whether themselves holding slaves or not; and all the common territory of the union was originally slave territory until it became free territory by sovereign 78 State action. Plainly, in such a case as this, the international law of Europe has no application, against historical facts and actual constitutional enactments. The sophism of this plea in the mouths of anti-slavery men, the uniform assertors of consolidation doctrines, would make the States, in the same breath, independent nations, in order that the international law of a different hemisphere may be applied against them, and also subject provinces of an anti-slavery nation, in order that they may be stripped of that equality of rights, belonging to sovereign constituent parties in a confederation.


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