Volume 12 — NO BUST FOR AUTHOR OF DRED SCOTT DECISION.

Speech in the Senate, on a Bill Providing for a Bust of the late Chief Justice Taney, February 23, 1865.

February 23d, Mr. Trumbull moved to proceed with the consideration of a bill from the House of Representatives requiring the Joint Committee of the two Houses on the Library to contract with a suitable artist for the execution in marble, and delivery in the Supreme Court Room of the United States, in the Capitol, of a bust of the late Chief Justice Taney, and appropriating one thousand dollars for this purpose. On the question of taking it up, Mr. Sumner said: “I object. An emancipated country should not make a bust of the author of the Dred Scott decision.” The motion to take up prevailed, when Mr. Sumner said:—

MR. PRESIDENT,—I objected to this joint resolution, when it was reported by the Senator from Illinois [Mr. Trumbull], and he was disposed to hurry it upon the Senate, to the exclusion of important business. I objected to it again to-day; but it was from no indisposition to discuss it.

I know well the trivial apology which may be made for this proposition, and the Senator from Maryland [Mr. Johnson] has already shown something of the hardihood with which it may be defended. In the performance of public duty I am indifferent to both.

The apology is too obvious. “Nothing but good of the dead.” This is a familiar saying, which, to a certain extent, is acknowledged. But it is entirely inapplicable, when statues and busts are proposed in honor of the dead. Then, at least, truth must prevail.

If a man has done evil during life, he must not be complimented in marble. And if indiscreetly it is proposed to decree this signal honor, then the evil he has done must be exposed; nor shall any false delicacy seal my lips. It is not enough that he held high place, that he enjoyed worldly honors, or was endowed with intellectual gifts.

What is the office of Chief Justice, if it has been used to betray Human Rights? The crime is great according to the position of the criminal.

If asked, Sir, to mention the incident of our history, previous to the Rebellion, most worthy of condemnation, most calculated to cause the blush of shame, and most deadly in its consequences, I do not doubt that you would name the Dred Scott decision, and especially the unhallowed assertion of the Chief Justice. I say this with pain. I do not seek this debate. But when a proposition is made to honor the author of this enormity with a commemorative bust, at the expense of the country, I am obliged to speak plainly.

I am not aware that the English judges who decided contrary to Liberty in the case of ship-money, sustaining the king in those pretensions which ended in Civil War, have ever been commemorated in marble. I am not aware that Jeffreys, Chief Justice and Chancellor of England, famous for talents as for crimes, has found any niche in Westminster Hall. No, Sir. They have been left to the judgment of history; and there I insist that Taney shall be left in sympathetic companionship. Each was the tool of unjust power. But the power Taney served was none other than that Slave Power which has involved the country in hideous war.

I speak what cannot be denied, when I declare that the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Then and there judicial baseness reached its lowest point. You have not forgotten that terrible decision, where an unrighteous judgment was sustained by falsification of history. Of course the Constitution of the United States and every principle of Liberty were falsified; but historical truth was falsified also. I have here the authentic report of the case, where it appears that the Chief Justice, while enforcing his unjust conclusion, blasting a whole race, used the following language.

“It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations,—and so far inferior, that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute.”[92]

In these words, solemnly and authoritatively uttered by the Chief Justice of the United States, humanity and truth were set at nought, and the whole country was humbled. “Then I and you and all of us fell down, whilst bloody Slavery flourished over us.”

I quote his words fully, so that there can be no mistake. Here, then, is his expressed assertion, that at the Declaration of Independence in 1776, and the adoption of the National Constitution in 1789, in Europe as well as in our own country, colored men were regarded as having “no rights which the white man was bound to respect.” Now, Sir, this is false,—terribly false. It is notorious that there were States of the Union, where, at the adoption of the Constitution, colored persons were free, and even in the enjoyment of the electoral franchise, while in England the Somerset case had already decided that there could be no distinction of persons on account of color, and Scotland, France, and Holland had all declared the same rule. Even Spain had spoken by the voice of some of her best children. So had Portugal. So also had Italy, and the Catholic Church. On this point there is no question. And yet this Chief Justice, whom you would honor with a marble bust, had the strange effrontery to declare that at that time, as well abroad as at home, colored men were regarded as having “no rights which the white man was bound to respect”; and this he said to justify a brutal interpretation of the Constitution. Search judicial annals and you find no perversion of truth more flagrant.

Sir, it is not fit, it is not decent, that such a person should be commemorated by a vote of Congress,—especially at this time, when Liberty is at last recognized. If you have money to commemorate the dead, let it be in honor of the defenders of Liberty gathered to their fathers. There was John Quincy Adams. There, also, was Joshua R. Giddings. Let their busts be placed in the Court-Room, where with marble lips they can plead always for human rights, teaching judge and advocate the glory and the beauty of justice. Then will you do something not entirely unworthy of a regenerated land, something to be an example for future times, something to help fix the standard of history.

I know that in the Court-Room there are busts of the other Chief Justices. Very well. So in the Hall of the Doges, at Venice, there are pictures of all who filled that high office in unbroken succession, with the exception of Marino Falieri, who, although as venerable from years as Taney, was deemed unworthy of a place in the historic line. Where his picture should have been is a vacant space, testifying always to the justice of the Republic. Let such a vacant space in our Court-Room testify to the justice of our Republic, and may it speak in warning to every one who would betray Liberty!

The appropriation was vindicated by Mr. Trumbull, Mr. Reverdy Johnson, of Maryland, and Mr. Carlile, of West Virginia. It was opposed by Mr. Hale, of New Hampshire, Mr. Wilson, of Massachusetts, and Mr. Wade, of Ohio. Mr. Sumner then obtained the floor.

At last I have the floor again. I rose at once to reply to the Senator from Maryland [Mr. Johnson], when he made his objurgatory vindication of the proposed bust; but the floor was given to others. And now, as I look at the clock, I see that I can only begin what I have to say.

Again let me declare that I am sorry to be drawn into this debate. But they who seek to canonize one of the tools of Slavery are responsible. Taney shall not be recognized as a saint by any vote of Congress, if I can help it.

The Senator has a bad cause, and I inferred that he thought so himself,—first, because he talked so loud, and, secondly, because he became personal. A good cause would have been discussed in softer voice, and without personality. The Senator becomes personal easily. In the sweep of his movement, he brushed against my distinguished friend from New Hampshire [Mr. Hale], and also against my colleague and myself, simply because we could not join in this oblation to the author of the Dred Scott decision. The Senator from New Hampshire and my colleague have already answered him in proper terms. But I say for my colleague what he could not say for himself. He can bear gibes for not being a lawyer. He is not, like the Senator, a counsellor of the Supreme Court of the United States, but in all the duties of Senator he is in every respect the equal of the Senator from Maryland.——

Here Mr. Sumner was arrested by the Vice-President announcing that the hour fixed for a recess had arrived. The consideration of the bill was never resumed, and it expired with the session. Had opportunity occurred, Mr. Sumner would have continued:—

I have already said that Chief Justice Taney, in pronouncing that fatal judgment, falsified history. Judicial error is aggravated by such a falsification; and here the evidence is complete. His statement is precise, that for more than a century before the Declaration of Independence and the adoption of our Constitution people of the African race had “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations”; and this unhappy asseveration culminates in the words, “and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.” And he adds: “This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals, as well as in politics, which no one thought of disputing or supposed to be open to dispute.” This is plain, though failing in the precision which belongs to the bench. But how untrue! All this naturally ends in shutting out the unhappy African from citizenship, involving the right to sue in the courts of the United States.

Unhappily, at that time Slavery prevailed extensively; but it had already received many blows, while the rights of the African were asserted not only by individuals, but by communities. Nay, more, from the beginning, the axiom of the Chief Justice, which, according to him, no one supposed open to dispute, had been assailed. Great authorities, great names, together with legislative and judicial bodies, stood forth against it.

There is Massachusetts, my own honored Commonwealth. From the earliest days of her history Slavery found little favor with her Legislature or her people. As early as 1645 the Legislature sent back two negroes brought from Guinea in a Boston ship, and the next year repeated its testimony against “the heinous and crying sin of man-stealing.”[93] In the same spirit, John Eliot, the apostle to the Indians, presented a memorial to the Governor and Council against selling captured Indians into slavery, saying, “To sell souls for money seemeth to me a dangerous merchandise.”[94] In 1701, Boston desired her Representatives in the General Court “to promote the encouraging the bringing of white servants, and to put a period to negroes being slaves.”[95] At the same time Chief Justice Sewall, of a family constant in warfare with Slavery, published a tract entitled “The Selling of Joseph a Memorial,” where he maintained that “originally and naturally there is no such thing as Slavery,” and that “these Ethiopians, as black as they are, seeing they are the sons and daughters of the first Adam, the brethren and sisters of the last Adam, and the offspring of God, they ought to be treated with a respect agreeable.”[96] In this spirit, the judicature of Massachusetts, in 1770, made haste against Slavery, by declaring the principle of Emancipation,—according to one authority, two years before the famous Somerset case in England.[97] This was followed, in 1780, by the Declaration of Rights, announcing that “all men are born free and equal,” which the same judicature interpreted as abolishing Slavery; so that at the adoption of the National Constitution Slavery did not exist in Massachusetts. That this undoubted history should have been disregarded by the Chief Justice is more astonishing, when it is considered that the conclusion belonged to the jurisprudence of our country. In a case well known to all interested in the history of Slavery, and especially to lawyers, decided in 1836, Chief Justice Shaw said: “How, or by what act particularly, Slavery was abolished in Massachusetts, whether by the adoption of the opinion in Somerset’s case, as a declaration and modification of the Common Law, or by the Declaration of Independence, or by the [State] Constitution of 1780, it is not now very easy to determine; and it is rather a matter of curiosity than of utility, it being agreed on all hands, that, if not abolished before, it was so by the Declaration of Rights.”[98] And yet even these words are forgotten in this fatal decision.

Here we must mention Rhode Island with honor. This State, planted by Roger Williams, may point with pride to her early record on Slavery. At a General Court held May 19, 1652, after setting forth, that “there is a common course practised amongst Englishmen to buy negroes, to that end they may have them for service or slaves forever,” it was ordered, “that no black mankind, or white, being forced by covenant bond, or otherwise, to serve any man or his assigns longer than ten years, or until they come to be twenty-four years of age, if they be taken in under fourteen, from the time of their coming within the liberties of this colony.”[99] If Rhode Island afterwards departed from this law, it existed, nevertheless, as an example not to be forgotten by the Chief Justice. Nor should he have forgotten that Pennsylvania, as early as 1712, passed an act to prevent the increase of slaves, although it was annulled by the Crown,[100] and that this same State enacted, March 1, 1780, that all persons born in that State after that day were free at the age of twenty-eight years.[101] But all this is inconsistent with the famous “axiom” on which the Chief Justice founded his fearful superstructure.

I need go no further than the dissenting opinion of Mr. Justice Curtis, on this very occasion, to find, that, “at the time of the ratification of the Articles of Confederation, all free native-born inhabitants of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors on equal terms with other citizens.”[102] Was all this forgotten by the Chief Justice? But how could he forget the decision of the admirable Judge Gaston, of North Carolina, who, describing the State Constitution of 1776, says, that it “extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution”?[103]

Strangely, he forgets also an important passage of history, being nothing less than the point-blank refusal of the Continental Congress to insert the word “white” in the Articles of Confederation. The question came up June 25, 1778, on these words: “The Free Inhabitants of each of these States (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all privileges and immunities of free citizens in the several States.” The delegates from South Carolina, acting in the spirit of the Dred Scott decision, moved, in behalf of their State, to limit this guaranty to “free white inhabitants.” On the question of inserting the word “white,” eleven States voted, two in favor of the insertion, one was divided, and eight were against it. South Carolina, not disheartened, made another attempt, by moving to add, after the words “the several States,” the further clause, “according to the law of such States respectively for the government of their own free white inhabitants,” thus seeking again to limit the operation of this guaranty. This proposition was also voted down by the same decisive majority of eight to three.[104] Such was the authoritative testimony of our fathers. And in harmony with this action was the Resolution for the Temporary Government of the Western Territory “ceded or to be ceded by individual States to the United States,” dated April 23, 1784, and drawn by Jefferson, and also the famous Ordinance for the Government of the Northwestern Territory, drawn by Nathan Dane, of Massachusetts, adopted by the Confederation July 13, 1787, in both of which the voters were without distinction of color.

Still more incomprehensible is the assertion of the Chief Justice, when we glance at the political literature of our country. Not only in Massachusetts, but elsewhere, the “axiom” of the Chief Justice, “which no one thought of disputing, or supposed to be open to dispute,” was denied. Nobody did this in more energetic terms than General Oglethorpe, the founder of Georgia, who, in a letter to Granville Sharp, wrote, under date of October 13, 1776: “My friends and I settled the colony of Georgia, and by charter were established trustees, to make laws, &c. We determined not to suffer Slavery there.… We would not suffer Slavery (which is against the Gospel, as well as the fundamental law of England) to be authorized under our authority; we refused, as trustees, to make a law permitting such a horrid crime.”[105] In the same spirit, John Wesley, the founder of Methodism, who had witnessed the workings of Slavery on our continent and in the West Indies, declared “American Slavery the vilest that ever saw the sun,” and the “execrable sum of all villanies.” “Men-buyers” he stigmatizes as “exactly on a level with men-stealers,” the slaveholder as “partaker with a thief, and not a jot honester,” and the means whereby slaves are procured as “nothing near so innocent as picking of pockets, housebreaking, or robbery upon the highway.”[106] So also spoke James Otis, in his famous pamphlet entitled “The Rights of the British Colonists Asserted and Proved,” first published in 1764, and reprinted in London, when he said: “The Colonists are, by the Law of Nature, free-born, as, indeed, all men are, white or black.… Does it follow that it is right to enslave a man because he is black? Will short curled hair, like wool, instead of Christian hair, as it is called by those whose hearts are as hard as the nether millstone, help the argument? Can any logical inference in favor of Slavery be drawn from a flat nose, a long or a short face?”[107] And so spoke Benjamin Rush, the patriot physician of Philadelphia, in “An Address to the Inhabitants of the British Settlements on the Slavery of the Negroes in America,” where Slavery is exhibited as “repugnant to the genius of Christianity” and inconsistent with “the justice and goodness of the Supreme Being,” and “a Christian slave” is called “a contradiction in terms.”[108] To these testimonies add the familiar words of statesmen, especially of Patrick Henry, “It is a debt that we owe to the purity of our religion, to show that it is at variance with that law that warrants Slavery,”[109]—and of Jefferson, in that memorable utterance, prompted by Slavery, “I tremble for my country, when I reflect that God is just, that His justice cannot sleep forever.”[110] All these sayings, directly repellent to the allegation of the Chief Justice, have often been cited in public speech, and most of them appear in a work entitled “Slavery and Antislavery,” by that devoted Abolitionist, William Goodell, published several years before the opinion of the Chief Justice.

Forgetting laws, judicial decisions, history, and political literature, it was easy for the Chief Justice to forget how the religious sects of the country testified for the rights of the African, sometimes by individuals, and sometimes by corporate acts. Here the Quakers took the lead. As far back as 1688, a small body of German Quakers at Germantown, Pennsylvania, presented a protest to the Yearly Meeting against “buying, selling, and holding men in slavery,”[111] which was followed in 1696 by formal advice from this body that the members should “be careful not to encourage the bringing in of any more negroes, and that such that have negroes be careful of them.”[112] One of their number, George Keith, denounced Slavery with especial vigor, as “contrary to the religion of Christ, the rights of man, and sound reason and policy.”[113] At the beginning of the last century the Quakers of New England were agitated. In 1716, they sent forth a declaration from Nantucket, that “it is not agreeable to truth for Friends to purchase slaves and keep them term of life;”[114] and in 1730, Elihu Coleman, of Nantucket, wrote a tract in reprobation of Slavery as “anti-Christian,” and “very opposite both to Grace and Nature.”[115] In 1729, at Philadelphia, Ralph Sandiford exposed it in a pamphlet entitled “The Mystery of Iniquity”; and in 1737, Benjamin Lay gave to the world his work with the expressive title, “All Slave-Keepers, that keep the Innocent in Bondage, Apostates,”—and this was printed by Benjamin Franklin.[116] Then came the extraordinary labors of John Woolman, who, from 1746 to 1768, travelled through the Middle and Southern Colonies, an avowed Abolitionist, testifying against Slavery,—and of Anthony Benezet, who, by various writings, and by gratuitous instruction of negroes at an evening school, showed his sense of their common humanity. Meanwhile at their Yearly Meetings Slavery was condemned. In 1754, there was a recommendation “to advise and deal with such as engage” in the traffic, with the declared desire to guard against “promoting the bondage of such unhappy people.”[117] In 1776, it was declared “that the owners of slaves who refused to execute proper instruments for giving them their freedom were to be disowned.”[118] There are also reports of meetings,—in Rhode Island, in 1717, 1727, 1760, 1769, and thence, nearly every year, to 1787,—in New York, previous to 1759, and in 1767, 1771, 1772, 1774, 1775, 1776, 1777, 1781, 1782, 1784, 1785, 1787,—and in Virginia, in 1757, 1764, 1766, 1767, 1768, 1773, 1780, and thence annually, with but one intermission, to 1787,—where the rights of the African were recognized, and in most of them Slavery was condemned.[119] The meeting of 1782, in Rhode Island, spoke of “that iniquitous practice of holding or dealing with mankind as slaves.”[120] The meeting of 1776, in New York, refused “to employ or accept the services in the church, or receive the collections,” of those “who continue these poor people in bondage.”[121] The meeting of 1773, in Virginia, earnestly recommended manumissions, and quoted the words of the Prophet, “The people of the land have used oppression and exercised robbery.”[122] These are only illustrations of the extent to which the pretension of the Chief Justice was disowned.

More tardily, but with equal force, the Methodists declared against Slavery, speaking by such great preachers as George Whitefield and John Wesley. From the historian Hildreth, whose work appeared some time before the Dred Scott decision, we learn that the Methodist Episcopal Church, just before the adoption of the Constitution, disqualified slaveholders from being members, and that Coke, the first bishop, was exceedingly jealous on this subject, although, unhappily, the rule was afterwards relaxed.[123] The Presbyterians of the United Synod of New York and Philadelphia, in 1787, proposed nothing less than “to procure eventually the final Abolition of Slavery in America.”[124] The Baptists of Virginia, in 1789, declared Slavery “a violent deprivation of the rights of Nature, and inconsistent with republican government.”[125] The Congregationalists of New England testified most brilliantly by the celebrated theologian, Samuel Hopkins, who brought his church at Newport to declare “the slave-trade and the slavery of the Africans, as it has taken place among us, is a gross violation of the righteousness and benevolence which are so much inculcated in the Gospel, and therefore we will not tolerate it in this church.”[126] Already, in 1776, he had put forth a tract, showing it to be the duty and interest of the American Colonies to emancipate all their African slaves, and declaring that Slavery is “in every instance wrong, unrighteousness, and oppression, a very great and crying sin, there being nothing of the kind equal to it on the face of the earth”;[127] and in 1791, soon after the adoption of the National Constitution, the second Jonathan Edwards, a twice-honored name, joined in this testimony.[128] But all this was forgotten by the Chief Justice.

Nor did he remember how, before the National Constitution, the opposition to Slavery, and sympathy with the African, found expression in Abolition Societies. That of Pennsylvania was formed in 1775, and bore the honorable title, “Society for the Abolition of Slavery, the Relief of Free Negroes unlawfully held in Bondage, and for improving the African Race.” Its President at the very adoption of the Constitution was Benjamin Franklin, who, in this post, as elsewhere, bore his testimony that the African had rights which the white man was bound to respect. In 1785 began in New York a “Society for promoting the Manumission of Slaves, and protecting such of them as have been or may be liberated,” with John Jay as President, who, like Franklin, bore his testimony in this post, as elsewhere. In 1786, this distinguished individual drafted and signed a memorial to the Legislature of New York against Slavery, declaring that the men held as slaves by the laws of the State were free by the law of God; and this memorial was signed by Robert R. Livingston and Alexander Hamilton. In Maryland, the State of the Chief Justice, an Abolition Society was formed in 1789, and among its officers were Samuel Chase, a signer of the Declaration of Independence, and Luther Martin, a member of the Convention that framed the National Constitution. How active these societies were in petitioning Congress, shortly afterwards, belongs to the history of our country. A petition was headed by Franklin, which, after pleading for the rights of all, “without distinction of color,” entreated Congress that it would “step to the very verge of the power vested in it, for discouraging every species of traffic in the persons of our fellow-men.”[129] All this is found in so common a book as the history by William Goodell, already quoted; but the Chief Justice knew it not.

I call attention especially to Maryland, where, at the very date of the Constitution, and in the Legislature of the State, a generous voice was lifted against Slavery by no less a person than William Pinkney, so famous as diplomatist, Senator, and consummate lawyer. He did not spare words. According to him, Slavery was “iniquitous and most dishonorable,” “founded in a disgraceful traffic,” “its continuance as shameful as its origin,”—and he bravely declared, that, “by the eternal principles of natural justice, no master in the State has a right to hold his slave in bondage for a single hour.”[130] There also was the neighbor State of Delaware, where, at the beginning of our Revolution, under date of “Wilmington, Sixth Month 20th, 1775,” Daniel Byrnes put forth a broadside entitled “A Short Address to the English Colonies in North America,” where he exposes the wrong to the African, and inquires, “How can any have the confidence to put up their addresses to a God of impartial justice, and ask of Him success in a struggle for freedom, who at the same time are keeping others in a state of abject slavery?” But the Chief Justice, whose long life was passed near the home of Pinkney and of Byrnes, yet, in face of their unanswerable testimony, utters his strange extravagance.

Pass now to England, and here the falsification is kindred to that I have exposed with regard to our own country; and when we consider how English law, English history, and English literature are familiar to all educated lawyers among us, it is painful to observe the strange oblivion that overcame the Chief Justice with regard to their most brilliant chapters.

As early as 1569, in the reign of Queen Elizabeth, occurred the famous case of the slave brought from Russia, whose master sought to scourge him, when it was grandly resolved that “England was too pure an air for slaves to breathe in.”[131] This case was cited by the managers of the Commons, during the Long Parliament, on the impeachment of the judges for their proceedings against John Lilburn and John Wharton;[132] so that it took a conspicuous place, not only in English law, but also in political history. The same principle is also found in the Introduction to Holinshed’s Chronicles, written in 1586, where, describing England, it is said: “As for slaves and bondmen, we have none; nay, such is the privilege of our country, by the especial grace of God and bounty of our princes, that, if any come hither from other realms, so soon as they set foot on land they become so free of condition as their masters, whereby all note of servile bondage is utterly removed from them.”[133] Such was English law at that early day, according to great authorities. And in the reign of Charles the First the same humanity appeared in literature, when Fuller, describing “the Good Sea-Captain,” says, “In taking a prize, he most prizeth the men’s lives whom he takes, though some of them may chance to be negroes or savages”; and then, “But our captain counts the image of God nevertheless His image cut in ebony, as if done in ivory.”[134]

Other cases followed. In the time of Queen Anne, Lord Chief Justice Holt decided that “as soon as a negro comes into England he becomes free: one may be a villein in England, but not a slave”; and Mr. Justice Powell, his associate, said, “The law takes no notice of a negro,”[135]—in other words, recognizes no difference between him and a white man. As early as 1696, the same eminent Chief Justice, giving judgment in another case, said, “Trover will not lie for a negro.”[136] In 1706, in still another case, he said, “The Common Law takes no notice of negroes being different from other men.”[137] Lord Campbell, referring to some of these authorities, in his Life of the Chief Justice, says that he “was the first to lay down the doctrine, which was afterwards fully established in the case of Somerset the Negro, that the status of Slavery cannot exist in England, and that as soon as a slave breathes the air of England he is free.”[138] In 1762, Lord Northington, deciding a case in Chancery where the master claimed the benefit in donation to a negro, said: “As soon as a man puts foot on English ground he is free; a negro may maintain an action against his master for ill usage, and may have a Habeas Corpus, if restrained of his liberty.”[139] These cases were crowned by the immortal judgment of Lord Mansfield in the Somerset case, where, after elaborate argument at the bar, and protracted adjournments of the court, it was solemnly decided, in 1772, that Slavery “is so odious that nothing can be suffered to support it but positive law,”[140] and since no such law could be shown in England, Slavery was impossible there. This case, besides constituting an epoch in the history of Liberty, is memorable for the argument of that learned lawyer, Francis Hargrave, undoubtedly a masterpiece of the English bar. It has been cited so constantly since,[141] that nothing short of the waters of Lethe can account for the forgetfulness of the Chief Justice with regard to it.

Scotland, although having a different jurisprudence, asserted the same principle, side by side with England. Sir Thomas Craig, in his work on Feudal Law, one of the chief monuments of Scottish jurisprudence, testifies that Slavery was unknown in his country in the reign of Queen Elizabeth, when he also flourished, and that there were no laws to regulate it.[142] In 1778, the question was presented to the courts on the claim of a master over a negro and it was found, on appeal, “that the dominion assumed over this negro under the law of Jamaica, being unjust, could not be supported in this country to any extent; that, therefore, the defendant had no right to the negro’s service for any space of time, nor to send him out of the country against his consent.”[143]

The literature of both countries was in harmony with the jurisprudence. Here I give the words of two Englishmen, John Locke and Samuel Johnson, and two Scotchmen, Adam Smith and David Hume. John Locke portrayed Slavery as “so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hardly to be conceived that an Englishman, much less a gentleman, should plead for it.”[144] Samuel Johnson exhibited “the planters of America” as “a race of mortals whom no other man wishes to resemble.”[145] Adam Smith wrote: “There is not a negro from the coast of Africa who does not, in respect to contempt of death and torture, possess a degree of magnanimity which the soul of his sordid master is too often scarce capable of conceiving.”[146] I quote David Hume at length, because his testimony is less known.

“The remains which are found of Domestic Slavery in the American colonies and among some European nations would never, surely, create a desire of rendering it more universal. The little humanity commonly observed in persons accustomed from their infancy to exercise so great authority over their fellow-creatures, and to trample upon human nature, were sufficient alone to disgust us with that unbounded dominion. Nor can a more probable reason be assigned for the severe, I might say barbarous, manners of ancient times than the practice of domestic slavery, by which every man of rank was rendered a petty tyrant, and educated amidst the flattery, submission, and low debasement of his slaves.”[147]

It is not improbable that this passage suggested to Colonel Mason, of Virginia, his condemnation of Slavery, as producing “the most pernicious effect on manners; every master of slaves is born a petty tyrant”;[148] and also the remarkable representation by Jefferson of the effect on “manners,” when he says, “The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submission on the other.”[149]

To this increasing testimony, where philosophy and literature unite, against the “axiom” of our Chief Justice, I add that of Granville Sharp, England’s earliest Abolitionist, who, more than any other person, was inspired to bear witness. Through his persistent purpose the case of Somerset was presented for hearing and pressed to judgment. The “axiom” was rejected by his life. In 1769, he wrote a tract entitled “A Representation of the Injustice and Dangerous Tendency of tolerating Slavery, or of admitting the least Claim of Private Property in the Persons of Men, in England.” Others followed. At the same time he was the watchful guardian of colored persons, offering them friendly protection.

Poetry and eloquence gave expression to the proud declaration of English law. Cowper’s “Task” appeared in 1785, with the exulting words,—

Sheridan took up the strain, and in one of his best utterances said:—

“Allegiance to that Power that gives us the forms of men commands us to maintain the rights of men; and never yet was this truth dismissed from the human heart,—never in any time, in any age,—never in any clime where rude man ever had any social feeling, or where corrupt refinement had subdued all feelings; never was this one unextinguishable truth destroyed from the heart of man, placed as it is in the core and centre of it by his Maker, that man was not made the property of man.”[151]

The same sentiment reappeared in the immortal outburst of Curran, which was the highest testimony to English law. And yet none of these are recognized by our Chief Justice.

In assertion of the general principle, France was not behind England. Schoell, in his “History of Treaties of Peace,” referring to this principle, says that in France “the beautiful maxim has always been followed, that whoever sets foot on French soil in Europe is free,—a maxim which, as we have said, the English tribunals did not adopt till 1772.”[152] Doubtless the general principle may be traced to an early period of French history. It was a frequent boast, and there are instances of its application. An edict of Louis the Tenth, called Le Hutin, or The Quarreller, in 1315, and another of Henry the Second, in 1553, are quoted as declaring the right of all men to liberty by the Law of Nature. At the siege of Metz, in 1552, the Spanish general of cavalry applied to the French commander for the return of a fugitive slave; but the latter replied, that the freedom acquired by the slave, according to the ancient and good custom of France, did not permit his rendition. In 1571, the same principle was maintained against an ambassador, although by the Law of Nations the persons an ambassador brings with him do not change their condition.[153]

These cases are mentioned in the “Causes Célèbres,” a well-known French collection of important trials; and the principle is attested by French authorities in jurisprudence, among which may be named Lebret, and also Loysel, whose works are found in the Library of Congress. I mention especially the “Institutes Coutumières” of Loysel, with the various notes of Laurière, Dupin, and Laboulaye, the last being the very loyal ally of our country, where this principle is stated and illustrated.[154]

The case of the slave at Metz deserves further mention. He had escaped from the besieging general, and taken with him a Spanish horse. The Duke of Guise, who commanded in the city, returned for answer to the application for his surrender, that he could not comply; that his hands were tied by the law of France from time immemorial; that, entirely free as it had been and is, it would not receive a slave: and so it would be, if he were the most barbarous and foreign in the world; having only set foot on the land of France, he is immediately at liberty and beyond all slavery and captivity, and is free as in his own country. The slave could not be returned; but the horse was sent back. The gay and lively Brantôme, who lived for pleasure, was struck by this incident, and, after repeating it “among other beautiful actions,” adds:—

“Truly, we must praise and admire that noble freedom, beautiful and Christian, in France, not to admit such servitudes and slaveries, too cruel, and which savor more of the Pagan and Turk than of the Christian.”[155]

Bodin, in his work on Government, which first appeared in French in 1576, must be quoted also. I copy from the old translation by Knolles, published in 1606.

“But in France, although there be some remembrance of old servitude, yet is it not lawful there to make any slave, or to buy any of others: insomuch that the slaves of strangers, so soon as they set their foot within France, become frank and free; as was by an old decree of the Court of Paris determined against an ambassador of Spain, who had brought a slave with him into France. And I remember that of late a Genoa merchant, having brought with him unto Toulouse a slave whom he had bought in Spain, the host of the house, understanding the matter, persuaded the slave to appeal unto his liberty. The matter being brought before the magistrates, the merchant was called for. The Attorney General out of the records showed certain ancient privileges given (as is said) unto them of Toulouse by Theodosius the Great, wherein he had granted, that slaves, so soon as they came into Toulouse, should be free: the merchant alleging for himself, that he had truly bought his slave in Spain, and so was afterward come to Toulouse, from thence to go home to Genoa, and so not to be bound to the laws of France. In the end, he requested, that, if they would needs deal so hardly with him as to set at liberty another man’s slave, yet they should at least restore unto him the money he cost him: whereunto the judges answered, that it was a matter to be considered of. In the mean time, the merchant, fearing lest he should lose both his dutiful slave and his money also, of himself set him at liberty, yet covenanting with him that he should serve him so long as he lived.”[156]

Nor was the principle restricted in application to persons of a white skin. The fugitive slave at Metz was a Moor or Turk. And there are other cases. In 1571, a merchant of Normandy brought to Bordeaux several Moors for sale; but the Parliament of Guienne, by a solemn decree, discharged them from slavery, “because France, the mother of Liberty, does not permit any slaves.” Another case occurred in the reign of Henry the Third, who, notwithstanding the remonstrances of the Spanish ambassador, refused to surrender two or three hundred “Turks, Moors, and Barbarians” who had escaped from a Spanish galley, but sent them all to Constantinople, each with a crown-piece in his pocket. These cases also appear in the authoritative pages to which I have already referred.[157]

That the African was no exception to the prevailing principle in its original vigor appears in subsequent cases. Unhappily, Slavery, exiled from France, found a home in the French colonies, and then succeeded in obtaining certain privileges even in France. By the Edict of 1716 and the supplementary Declaration of 1738, the rights of the master over his slave in France were recognized in certain cases. A slave escaping from the colonies was surrendered, and the officers of the Admiralty, and others whom it concerned, were enjoined to assist the master in his recovery; but where a master voluntarily brought or sent a slave into France, he was obliged first to obtain permission from the colonial governor, and register the same both at his place of residence and the port of disembarkation. With these considerable limitations the great rule of France prevailed. The master was not permitted to sell or exchange his slave in France; nor could he hold him, if he had failed to comply with the required formalities.[158]

In 1738, the liberty of a slave brought from San Domingo, and without compliance with prescribed formalities, was recognized after an elaborate hearing by the Admiralty. The general principle was presented with much force. One of the counsel exclaimed: “In France there are no slaves; and the custom is such that not only Frenchmen, but also foreigners entering a port of France, and crying, ‘France and Liberty!’ are out of the power of him who possessed them, who loses the purchase-money and the service of the slave, if the slave refuse to serve him.”[159] This case, which testifies against our Chief Justice, is found in a French collection of Celebrated Trials, and there is a full abstract of it in the notes to the case of Somerset in Howell’s edition of the State Trials.[160]

In 1776, there was a case, entitled “A Negro and a Negress who claimed their liberty against a Jew,”[161] where, after elaborate hearing, the Admiralty decreed the liberty of the claimants. Here also, while insisting upon failure to comply with the prescribed formalities, the original rule of France was eloquently declared. The counsel of the slaves began by saying: “Two slaves have had the happiness to land in France; they have heard that the air breathed here is that of Liberty.” Proceeding in his argument, the counsel refutes the Dred Scott decision. “Those,” said he, “who have thought to perceive a natural imprint of servitude on the countenances of certain people, instead of consulting reason, have taken for guide only the prejudices engendered by vanity and pride. Had they listened in silence to the powerful voice which cries at the bottom of the heart of all men, their own heart would have contradicted the error of the mind. They would then have recognized that daring to pretend that all men are not born free is to calumniate Nature.”[162]

In these cases there was an evident disposition to follow the teachings of Justice and Humanity. In another case, finally decided in 1759, it was suggested, that, even where the prescribed formalities had been complied with, the great rule of Liberty was not restricted, inasmuch as the Code Noir had never been registered in the Parliament of Paris. On appeal to this Parliament, the highest tribunal of France, the slave was ordered to be set free; upon which counsel, quoting the case, observed: “This decree attests that the jurisprudence of the Parliament of Paris is favorable to Liberty.”[163]

Thus far I have adduced only the jurisprudence of France. But French literature also cries out. The famous Encyclopædia, edited by those leaders of thought, Diderot and D’Alembert, in the middle of the last century, says at the end of an elaborate article on Slavery: “We conclude that Slavery, founded by force, by violence, and in certain climates by excess of servitude, cannot perpetuate itself in the universe but by the same means.”[164] Almost contemporaneously, Montesquieu, in his “Spirit of Laws,” exposed with admirable irony the wrongs of the African. “It is impossible,” says the philosopher, “that we should suppose that these people are men; because, if we supposed them men, people would begin to think that we ourselves were not Christians.”[165]

No Abolitionist of our day has denounced Slavery with more power, or vindicated the rights of the African with more sympathy, than Condorcet. In his notes to the “Pensées” of Pascal, which appeared in 1776, and gave such satisfaction to Voltaire, he steps aside to declare:—

“And let it not be said, that, in suppressing Slavery, Government would violate the property of the colonists. How could usage, or even a positive law, ever give a man a true right of property in the labor, in the liberty, in the entire being of another innocent man who had never consented to it? In declaring the negroes free, we should not take from the colonist his property,—we should prevent him from committing a crime; and the money paid for a crime has never given the right to commit it.”

Then, in reply to those who charge the negroes with vices, he says indignantly:—

“Make them free, and nearer Nature than yourselves, they will be superior to you.”[166]

So does the French philosopher testify against the Chief Justice.

Strange that the Chief Justice, forgetting the jurisprudence and literature of France, forgot also the brilliant testimony of Lafayette, who, communicating to Congress at Philadelphia the great news that the Treaty with England acknowledging our Independence was signed, wrote by the same packet, and under the same date, February 5, 1783,[167] to Washington, calling upon the commander of our armies to unite with him in the purchase of a small property, where they might make the experiment of emancipating the negroes, and of employing them simply as farm laborers. Although Washington failed to unite with his French friend, the appeal exists as testimony against the Chief Justice. There is also the letter of Lafayette to Hamilton, April 13, 1785, asking to be enrolled in what he calls the “Association against the Slavery of Negroes,” in New York, and declaring that he has ever been “partial to his brethren of that color.”[168] This should have been remembered by the Chief Justice.

From France I pass to Holland, including Belgium. Here an authority so familiar as Bynkershoek tells us that the Belgians, capturing Algerines, Tunisians, and Tripolitans, on the ocean or in the Mediterranean, are accustomed to sell them into Slavery in Spain; “for the Belgians themselves have no slaves except in Asia, Africa, and America.”[169] Like France, the country at home was free, and Slavery was exiled to the colonies. The efficacy of this rule is curiously attested by an incident recorded by Diderot, the Frenchman so eminent in science and literature, and of universal knowledge. It is in his Tour in Holland, made in 1773. It is well known that Peter of Russia, called the Great, served as a shipwright in the docks of Holland. Afterwards visiting the country as Czar, he was attracted by the apparatus for execution, but, not comprehending its operation clearly, he said, “It is only necessary to take one of my slaves, and try it on him.” It was represented, that, besides the revolting atrocity of this act, it would not be possible to allow it. “Ah! why not?” said the Czar. “Am I not master of my slave, and can I not dispose of him at my will?” “In your own country, perhaps,” replied the burgomaster, “but not here. Every slave who sets foot in Holland becomes free there, and belongs only to himself.”[170] This visit of the Czar was early in the last century, though recorded by Diderot later, and then Holland was already ranged with countries that would not tolerate Slavery; but the Chief Justice remembers not the testimony.

Spain also cries out against the Chief Justice. Her favorite monarch, Isabella, was aroused against the discoverer of the New World at the report that slaves from the Indies had been introduced into Spain with his sanction, and she exclaimed, “By what authority does Columbus venture thus to dispose of my subjects?” Instant proclamation was made by her order, that all who had Indian slaves in their possession, granted by the Admiral, should forthwith provide for their return to their own country, while the few held by the Crown were restored to freedom in like manner. Las Casas records, that, “so great was the Queen’s indignation at the Admiral’s misconduct in this particular, that nothing but the consideration of his great public services saved him from immediate disgrace.”[171] Whatever the legislation and jurisprudence of Spain, this historic incident must not be forgotten. It was the voice of the sovereign, and therefore, for the time, the voice of the nation.

There are other eminent Spaniards to be included in the cloud of witnesses, especially Las Casas, whose story I give on the authority of our own historian, just quoted, whose works were in every library of the country when the Chief Justice launched his decree: I mean my much valued friend, the late William H. Prescott. In his “History of the Conquest of Mexico” is a description of the good Bishop, who, to relieve the Indian natives from slavery in the islands of the West Indies, proposed the introduction of Africans, and in an evil hour his advice was followed. At a later period he regretted keenly the wrong he had done, since, to use his own words, “the same law applies equally to the Negro and the Indian.” Afterwards, at a hearing before the Emperor, Charles the Fifth, he denounced Slavery in words of fervid eloquence, worthy of any Abolitionist, saying: “The Christian religion is equal in its operation, and is accommodated to every nation on the globe. It robs no one of his freedom, violates none of his inherent rights, on the ground that he is a slave by nature, as pretended; and it well becomes your Majesty to banish so monstrous an oppression from your kingdoms in the beginning of your reign, that the Almighty may make it long and glorious.”[172] In an elaborate memorial prepared in 1542, the same upright churchman denounces Slavery, saying, “God forbids us to do evil that good may come of it”; and the historian adds, “The whole argument, which comprehends the sum of what has been since said more diffusely in defence of Abolition, is singularly acute and cogent.”[173] But the Chief Justice forgot all these things.

And he forgot also the dying testimony of Cortés, the conqueror of Mexico, who, in his testament, revealed his anxieties as a slave-master, in the following direction to his son: “It has long been a question, whether one can conscientiously hold property in Indian slaves. Since this point has not yet been determined, I enjoin it on my son Martin and his heirs, that they spare no pains to come to an exact knowledge of the truth, as a matter which deeply concerns the conscience of each of them, no less than mine.” The historian from whom I copy this passage adds: “The state of opinion in respect to the great question of Slavery in the sixteenth century, at the commencement of the system, bears some resemblance to that which exists in our time, when we may hope it is approaching its conclusion. Las Casas and the Dominicans of the former age, the Abolitionists of their day, thundered out their uncompromising invectives against the system, on the broad ground of natural equity and the rights of man.”[174] Thus in advance did the historian answer the Chief Justice.

Associated with Las Casas in lofty truth was the Dominican, Dominic Soto, the confessor of Charles the Fifth, and the oracle of the Council of Trent, to whom, it is said, that assembly was indebted for much of the precision, and even elegance, recognized in its doctrinal decrees. His Treatise on Justice and Law is not unknown to students of philosophy, and it has been commended by Sir James Mackintosh, who rejoices in bringing forward the remarkable testimony it furnishes against Slavery. “It is affirmed,” says the Dominican, “that the unhappy Ethiopians are by fraud or force carried away and sold as slaves. If this is true, neither those who have taken them, nor those who purchased them, nor those who hold them in bondage can ever have a quiet conscience, till they emancipate them, even if no compensation should be obtained.”[175] This testimony has not been left to slumber in the Latin text of the author. I take it from a favorite production in our own language. Not content with quoting it, Mackintosh adds: “As the work which contains this memorable condemnation of Man-Stealing and Slavery was the substance of lectures for many years delivered at Salamanca, Philosophy and Religion appear, by the hand of their faithful minister, to have thus smitten the monsters in their earliest infancy.”[176] But the Chief Justice ignored all this.

Nor is Portugal to be omitted in this catalogue; and here the testimony is from a familiar authority, being none other than the History of Brazil, by Robert Southey. In this elaborate work, the author, an English classic of the present century, dwells on the unsurpassed eloquence of the Father Vieyra, in the early settlement of Brazil, while he denounced Slavery. No modern Abolitionist has ever used stronger language. Born at Lisbon, in 1608, and dying at Bahia, in 1697, he was called by his countrymen “the last of the mediæval preachers,” and is the most celebrated of Portuguese divines. Thus he spoke: “Oh, what a market! a negro for a soul, and the soul the blacker of the two! ‘This negro shall be your slave for the few days that you may have to live, and your soul shall be my slave through all eternity, as long as God is God!’—this is the bargain which the Devil makes with you.” Then again the fierce orator said: “My brethren, if there be any who doubt upon this matter, here are the laws, here are the lawyers; let the question be asked.… Go to Turkey, go to Hell: for there can neither be Turk so beturked in Turkey, nor Devil so bedevilled in Hell, as to affirm that a free man may be a slave.… We ought to support ourselves with our own hands; for better is it to be supported by the sweat of one’s own brow than by another’s blood. O ye riches of Maranham! What if these mantles and cloaks were to be wrung? They would drop blood!”[177] Surely here is testimony worthy of memory; but our Chief Justice knew it not.

Nor has he regarded official acts by which Portugal at an early day set herself against Slavery. The years 1570, 1587, 1595, 1661, and 1680 were marked by Portuguese to secure the liberty of native Indians. At a later day, but anterior to our Constitution, the African began to feel the same recognition. On the 19th September, 1761, it was enacted, that “all black slaves who should henceforward come to the ports of the kingdom of Portugal and Algarve from Africa or America should be free”; and this was followed by royal order of the 2d January, 1767, extending “this beneficent measure to mulattoes of both sexes who were not mentioned in preceding laws.” Then came the law of 16th January, 1773, which determined that “the children of male and female slaves, who might be born in the kingdom of Portugal after the above date, should be free, and capable of holding office, honors, and dignities, without the stigma of freedmen, which the superstition of the Romans established in their customs, and which Christian union and civil society now render intolerable in the kingdom.” These important facts I have from the Portuguese Legation at Washington. Note, if you please, the dates; yet the Chief Justice knew nothing of this important and honorable testimony.

The evidence may well be closed with Italy and the Catholic Church. Surely Bancroft’s History of the United States should have taught the Chief Justice at least to hesitate. In his learned chapter on Slavery the historian records, that, “by the Venetian law, no slave might enter a Venetian ship, and to tread the deck of an argosy of Venice became the privilege and the evidence of freedom.” Then, again, the Chief Justice might have learned from him, that in the twelfth century Pope Alexander the Third became the guardian of the oppressed, and wrote: “But since Nature created all free, no one by condition of Nature was subjected to slavery”; and he might have learned also how even Pope Leo the Tenth, in the midst of his luxurious life, making his pontificate a carnival, declared that “not the Christian religion only, but Nature herself, cries out against the state of Slavery.”[178]

But how could our Chief Justice, belonging and faithful to the Roman Church, forget the testimony of that Church as presented by Balmés, the remarkable Spanish writer, in his work entitled “Protestantism and Catholicity compared in their Effects on the Civilization of Europe”? Here is found an eloquent vindication of the Church, which, according to its defender, rejected the assumptions of the Chief Justice. The famous bull against the slave-trade by Gregory the Sixteenth, in 1839, sets forth what was done to this end by Paul the Third in 1537, by Urban the Eighth in 1639, and by Benedict the Fourteenth in 1741, casting “the most severe censures upon those who venture to reduce the inhabitants of the East or West Indies into slavery, buy, sell, give, or exchange them, separate them from their wives and children, strip them of their property, take or send them into strange places, or deprive them of their liberty in any way, to retain them in slavery, or aid, counsel, succor, or favor those who do these things under any color or pretence whatever, or preach or teach that this is lawful, and, in fine, coöperate therewith in any way whatever.”[179] But, in face of this arraignment by successive pontiffs, where is the Chief Justice? Thus does his own Church testify against him.

Here I suspend the testimony, leaving several famous countries unvisited. But there is enough for conviction; nor is argument needed. The witnesses are before you, excellent and unanswerable, in long array,—witnesses from our own country, witnesses from England, witnesses from Scotland, witnesses from France, witnesses from Holland, witnesses from Spain, witnesses from Portugal, witnesses from Italy, witnesses from the Catholic Church, all rising up to testify against that “opinion” which the Chief Justice announces as “fixed and universal in the civilized portion of the white race,”—against that “axiom in morals as well as in politics” which he says “no one thought of disputing, or supposed to be open to dispute.” They rejected his “opinion”; they disputed his “axiom.” Did he forget? or, for the sake of Slavery, did he pervert judgment? But such forgetfulness was akin to such perversion. And when it is considered that this was to put Slavery in the National Constitution, it was nothing less than a criminal falsification; nor should ignorance be an excuse.

Plainly, the Chief Justice who could do this deserves no marble bust by vote of Congress. His comprehensive office was Justice; his special duty was Liberty. But these he sacrificed, making Law and Constitution hideous. The old maxim of Law cries out against him: Impius et crudelis judicandus est, qui Libertati non favet. Such is the terrible judgment. Again the Law speaks: Execrandus est, qui Libertati non favet: “Accursed is he who does not favor Liberty.” This is the ancient voice of the Law, older than Constitution and Declaration of Independence, which must not be disobeyed.