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Page 31
* * * * *
After that decision had been rendered, Lord Stowell, who was at that
time in correspondence with Judge Story, sent him a copy of it, and
wrote to him upon the subject of his judgment. No man will doubt the
anti-slavery feelings and proclivities of Judge Story. He was asked to
take the decision into consideration and give his opinion about it. Here
is his answer:
"I have read, with great attention, your judgment in the slave case.
Upon the fullest consideration which I have been able to give the
subject, I entirely concur in your views. If I had been called upon to
pronounce a judgment in a like case, I should have certainly arrived at
the same result."
That was the opinion of Judge Story in 1827; but, sir, whilst
contending, as I here contend, as a proposition, based in history,
maintained by legislation, supported by judicial authority of the
greatest weight, that slavery, as an institution, was protected by
the common law of these colonies at the date of the Declaration of
Independence, I go further, though not necessary to my argument, and
declare that it was the common law of North and South America alike.
* * * * *
Thus, Mr. President, I say that even if we admit for the moment that
the common law of the nations which colonized this continent, the
institution of slavery at the time of our independence, was dying away
by the manumissions either gratuitous or for a price of those who
held the people as slaves, yet, so far as the continent of America was
concerned, North and South, there did not breathe a being who did
not know that a negro, under the common law of the continent, was
merchandise, was property, was a slave, and that he could only extricate
himself from that status, stamped upon him by the common law of the
country, by positive proof of manumission. No man was bound to show
title to his negro slave. The slave was bound to show manumission under
which he had acquired his freedom, by the common law of every colony.
Why, sir, can any man doubt, is there a gentleman here, even the Senator
from Maine, who doubts that if, after the Revolution, the different
States of this Union had not passed laws upon the subject to abolish
slavery, to subvert this common law of the continent, every one of these
States would be slave States yet? How came they free States? Did not
they have this institution of slavery imprinted upon them by the power
of the mother country? How did they get rid of it? All, all must admit
that they had to pass positive acts of legislation to accomplish this
purpose. Without that legislation they would still be slave States.
What, then, becomes of the pretext that slavery only exists in those
States where it was established by positive legislation, that it has
no inherent vitality out of those States, and that slaves are not
considered as property by the Constitution of the United States?
When the delegates of the several colonies which had thus asserted their
independence of the British Crown met in convention, the decision of
Lord Mansfield in the Sommersett case was recent, was known to all. At
the same time, a number of the northern colonies had taken incipient
steps for the emancipation of their slaves. Here permit me to say, sir,
that, with a prudent regard to what the Senator from Maine (Mr. Hamlin)
yesterday called the "sensitive pocket-nerve," they all made these
provisions prospective. Slavery was to be abolished after a certain
future time--just enough time to give their citizens convenient
opportunity for selling the slaves to southern planters, putting the
money in their pockets, and then sending to us here, on this floor,
representatives who flaunt in robes of sanctimonious holiness; who make
parade of a cheap philanthropy, exercised at our expense; and who say
to all men: "Look ye now, how holy, how pure we are; you are polluted by
the touch of slavery; we are free from it."
* * * * *
Now, sir, because the Supreme Court of the United States says--what
is patent to every man who reads the Constitution of the United
States--that it does guaranty property in slaves,it has been attacked
with vituperation here, on this floor, by Senators on all sides. Some
have abstained from any indecent, insulting remarks in relation to the
Court. Some have confined themselves to calm and legitimate argument. To
them I am about to reply. To the others, I shall have something to say a
little later. What says the Senator from Maine (Mr. Fessenden)? He says:
"Had the result of that election been otherwise, and had not the
(Democratic) party triumphed on the dogma which they had thus
introduced, we should never have heard of a doctrine so utterly at
variance with all truth; so utterly destitute of all legal logic; so
founded on error, and unsupported by anything like argument, as is the
opinion of the Supreme Court."
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