MR. WHITE,--I have read the Note on a passage in Blackstone's
Commentaries, which you gave us in your last, with some surprise. I had
supposed before, that no gentleman of any intelligence could be found
within the four corners of our state, who would seriously undertake to
maintain that our domestic slavery, which is obviously the mere
creature of our own positive law, is so right and proper in itself,
that we are under no obligation whatever to do any thing to remove, or
lessen it, as soon as we can. I had thought, indeed, that it was a
point conceded on all hands, that, wrong in its origin and principle,
it was to be justified, or rather excused, only by the stern necessity
which had imposed it upon us without our consent, and which still
prevented us from throwing it off at once, without a degree of danger
which we could not properly encounter. And, at any rate, I had imagined
that all of us were fully satisfied, by this time, that it was an evil
of such injurious influence upon our moral, political, and civil
interests, that we owed it to ourselves as well as to our subjects, to
reduce, and remove it, as soon, and as fast as possible, consistently
with the rights which we had created or sanctioned by our laws; and
with other considerations which we were bound to regard. In all this,
however, it seems, I was reckoning without my host, the author of the
article before me, who has come forward, at this late hour, to assert
the absolute rectitude and utility of the system, with all the power of
his pen. I do not, however, by any means, feel disposed to question his
perfect right to do so, or to deny for a moment the ingenuity with
which he has labored to maintain his novel position. On the contrary, I
freely acknowledge both; but believing at the same time, as I do, that
his reasonings are false in their principle, and pernicious in their
tendency, I must beg leave to follow his annotations with a few
remarks.
And first, the Annotator, after declaring that he has been impelled to
defend our domestic slavery "by a pious reverence for the institutions
of our forefathers," (a very honorable motive; but strangely
misapplied,) proceeds to say: "It is hardly necessary to expose the
sophistry by which Mr. Blackstone affects to prove that slavery cannot
have had a lawful origin. We do not pretend to trace our title to its
source. We have no call to sit in judgment between the conquered
African and his conqueror. We rest our defence on principles which
legitimate our title, whatever its origin may have been. Yet it may not
be amiss to say a few words to show the fallacy of those plausible and
imposing dogmas, with which we too often suffer ourselves to be talked
down." Now I have always regarded the reasoning of Blackstone on this
point as absolutely unanswerable; and I am happy to know that I am not
alone in my opinion of its weight; for the late venerable Judge Tucker,
I see, in _his_ note upon the same passage, (which I commend to all
your readers,) after quoting it at length, adds these words: "Thus by
the most _clear_, _manly,_ and _convincing_ reasoning, does this
excellent author refute every claim, upon which the practice of slavery
is founded, or by which it has been supposed to be justified, at least,
in modern times." I will not, however, too hastily conclude against the
Annotator's objections; but endeavor to weigh them with due care. He
proceeds thus: "Slavery," says Mr. Blackstone, "cannot originate in
compact, because the transaction excludes the idea of an equivalent."
This is the substance of Blackstone's argument on this head; but does
not give us a full idea of its force. His own statement of it is as
follows: "But secondly, it is said that slavery may begin 'jure civili'
when one man sells himself to another. This, if only meant of contracts
to serve or work for another, is very just; but when applied to strict
slavery, in the sense of the laws of old Rome or modern Barbary, is
also impossible. Every sale implies a price, _a quid pro quo_, an
equivalent given to the seller in lieu of what he transfers to the
buyer; but what equivalent can be given for life and liberty, both of
which (in absolute slavery) are held to be in the master's disposal?
His property also, the very price he seems to receive, devolves _ipso
facto_ to his master, the instant he becomes his slave. In this case,
therefore, the buyer gives nothing, and the seller receives nothing: of
what validity then can a sale be, which destroys the very principles
upon which all sales are founded?" Now this seems to me to be pretty
good logic; and how then does the Annotator answer it? Why he says:
"For an answer to this specious fallacy, I shall content myself by
referring you to the masterly essay of Professor Dew, who has so
clearly exposed it as to leave me nothing to add." This is certainly
judicious, and I cannot but commend him for his prudence, at least, in
thus turning over the trouble of answering such an argument to another.
How this latter gentleman, however, (who must take the compliment _cum
onere_,) can have contrived to expose so clearly "the specious fallacy"
which, it seems, lurks in it, I confess I cannot imagine; as I have not
his "masterly essay" before me. No doubt his exposure must be clever;
but, with all due respect for him, it is plainly impossible that it can
be sound. As at present advised, therefore, I shall stick to
Blackstone, or rather to his reasoning, which, as far as I can see, no
human wit can ever refute.
But the Annotator takes upon himself to grapple with another argument
of Blackstone, which he states in these words: "The commentator further
tells us that slavery cannot lawfully originate in _conquest_, as a
commutation for the right to kill; because this right rests on
necessity, and this necessity plainly does not exist, because the
victor does not kill his adversary, but makes him captive." Now this,
too, I have heretofore taken for very sound logic; and why is it not
perfectly so? Why because, says the Annotator, the conqueror may be in
such a situation that he can only secure himself against the future
hostility of his conquered enemy, by killing, _or_ by enslaving him;
and if he may enslave him himself, then he may hand him over to another
to deport him; which is the mildest mode of doing the thing. Of course,
"the mere captivity of his enemy does not imply the security of the
captor, should he allow his prisoner to go free." And he illustrates
his argument on this point, very prettily, by a figure. "The snared
tiger is in your power. You may kill--you may cage him. _Therefore_,
says Mr. Blackstone, you are under no necessity to do either, and the
noble beast has a fair claim to his liberty." This is a dexterous turn;
but unluckily it proceeds upon a misconception of the true point of
Blackstone's argument, which the Annotator ought to have perceived is
itself an answer to another. The commentator, observe, is answering the
argument of Justinian, that slavery may arise "_jure gentium_," from a
state of war; that is, from the right of a captor to kill his enemy
taken prisoner in battle. "But it is an untrue position," says he,
"when taken generally, that by the law of nature or nations, a man may
kill his enemy; he has only a right to kill him in particular cases, in
cases of absolute necessity for self-defence; and it is plain this
absolute necessity did not subsist, since the victor did not actually
kill him, but made him prisoner." Now the answer is obviously complete,
_so far as regards the point to which it applies_. But, says the
Annotator, it does not settle the question. Perhaps not; nor does
Blackstone say that it does; but it settles the argument of Justinian;
and that is all that, considered as an answer, it was intended, or
could be fairly required, to do.
But why does it not even settle the question? Why, because, says the
Annotator, the conqueror has a right to dispose of his captive in such
a manner as to protect himself from his future hostility; and if he may
not kill, it does not follow that he may not enslave, or transport him,
provided it is necessary for his own security, to dispose of him in
that way. Very true; but this is new matter, which demands perhaps a
new answer; but does not at all invalidate the former answer to the
former argument. And with regard to this new matter too, Blackstone
has, in my opinion, very fairly answered it in advance by what he
immediately adds, but what the Annotator, (inadvertently no doubt,) has
kept back. Thus he adds: "War is itself justifiable only on principles
of self-preservation, and, therefore, it gives no other right over
prisoners, but merely to disable them from doing harm to us, _by
confining their persons_; much less can it give a right to kill,
torture, abuse, plunder, _or even to enslave_, an enemy, _when the war
is over_." To expand this sentence a little. You may, says Blackstone,
by the laws of war, put your enemy _hors de combat_; but you must do
it, by the law of humanity, which is a prior and perpetual part of the
same law of nature, with as little suffering to him as possible,
consistently with your own safety. You may then, I grant you, take him
prisoner, and "_confine his person_," that is, if you cannot venture to
discharge him on his parole; but "_only while the war lasts_;" for the
very foundation of your right to confine him grows out of the war, and
vanishes, of course, with the return of peace.
Now it is obvious, I think, that this argument, duly considered, very
fairly answers, by anticipation, the new matter which the Annotator has
brought into view. For how, I ask, can a temporary right to confine
your captive _durante bello_, become the basis for the transfer of an
absolute right to enslave and deport him? Obviously, if I must even
grant that you can transfer your right of self-defence, or the powers
which it involves, to a neutral, (which I might well question,) you can
only transfer it to the extent to which you possess it yourself. But
your right over your prisoner of war ceases with your war against the
nation, or tribe, to which he belongs. And what right, then, can you
have to hand him over to an assignee, who you know will continue his
dominion over him, (and over his children after him,) without putting
it in your power again to restore him, as in duty bound, upon the
cessation of hostilities, to his family and friends? Or what right can
your assignee have to hold the prisoner under your assignment, one
moment after your right itself has run out? Obviously, none at all. A
holds a slave, who is to serve for the life of B, but to be free
afterwards, and sells him to C in fee simple; what right has C to hold
him after the death of B? Clearly none at all.
There is no escaping from the force of this argument, as far as I can
see, but by maintaining, (as the Annotator indeed seems disposed to
do,) that barbarians can have no peace with each other; but that war
among them must be waged _ad internecionem_, to the point of mutual
extermination, or something equivalent. But this notion is plainly more
barbarous than the practice of the most barbarous tribes that we have
ever read, or heard of; for there is not one of them that does not make
peace, after its fashion; (or did not at least, before our European
slavers taught them a different lesson,) and the act of making peace
obviously implies that there can be, and is, a reasonable security
against future hostilities, without the destruction of either party.
And there is no tribe on earth, I suppose, (or was not before the
slave-trade began,) so absolutely and desperately barbarous as to
insist upon holding its captives after the war is over, and the treaty
of peace fairly ratified by a smoking match, or a dance upon the green.
But the Annotator may yet say, (and does in fact,) that granting all
this, the captor _may have been_ in the dilemma which he has supposed,
_during the war_; that is, he may have been obliged to kill or sell his
captives immediately, to save himself; and he puts a case to illustrate
his argument on this point. "When Colonel Campbell, at the head of a
few militia, stooped from the mountains of Virginia on Carolina, and
bore off the corps of Colonel Ferguson in his pounces, had he been
pursued and overtaken by Tarleton, he must have killed his prisoners.
He could not have held them, and to have enlarged them would have been
to sacrifice the lives of thousands. If, then, he had had no place of
refuge, he might have handed them over to any custody, civilized or
savage, in which they might have been removed from the theatre of the
war." But this case is obviously an imaginary one; and such as could
hardly have occurred in fact. It is remarkable indeed that the
Annotator could find no example in all the romance of real life to suit
the exigence of his argument; but was compelled to fabricate one for
the purpose; or at least to piece out an actual occurrence, by a
supplemental supposition or two of his own; and even then could not
make it serve his turn. Thus Colonel Campbell was _not_ "pursued and
overtaken by Tarleton," and, if he had been, would evidently have had
to fight or surrender, and could have had no time to think about the
supposed alternative of killing his prisoners, or handing them over to
a third party, even if one had been there to receive them. And if you
vary the case a little, so as to make him pursued, but not overtaken;
the time that you will thus give him to hand over his prisoners to
others, will equally suffice to enable him to escape with them himself.
Or if you give him time enough to hand them over; but not enough to
escape with them, (a point of nicety that is hardly conceivable,) then
you also allow the pursuing enemy time enough, in all probability, to
come up and recapture them from their new holders; the very thing to be
avoided. The case, therefore, is evidently altogether fanciful, and
proves nothing. At all events, it is quite clear that such a _nodus_ as
it indicates could not have occurred in any single instance of the sale
of captives for slaves, by any African chief, to the master of a
Spanish ship. At least, it is quite fair to say that, in general, the
mere fact of the captor's having sold his captive, even during the war,
must be _prima facie_, if not conclusive evidence, that he could not
have been in the dilemma imagined, of being obliged to kill, or to
enslave him; for it must be obvious that if he had him so completely in
his power as to be able to bargain, sell, and deliver him to the
slaver, and to receive his money or goods stipulated for him in return;
he could not have been very closely pursued by any barbarous Tarleton
in his rear at the time, and could not have been under any pressing
necessity to do either the one thing, or the other; but, for aught that
appears, might have disposed of his prisoner in some more humane
manner. The _onus probandi_, then, or burden of proof, to show that in
point of fact the captor and vender of any African slave, _was_, in any
case whatever, in the precise predicament supposed, must be on the
Annotator; and can he bear it? Hardly, I suppose. But of what avail,
then, can it be to his argument, that he can _imagine_ or _invent_ a
case, (or a hundred cases, if he likes,) in which there _might have
been_ a lawful origin of slavery, when he evidently cannot show that
any thing like it has ever occurred in fact, from the first beginning
of the slave trade down to the present time?
Thus it appears that the reasoning of Blackstone to prove the
unlawfulness of slavery in its origin, is as strong as we have always
thought it; and very easily defends itself against all that any
ingenuity can urge against it. But say that it is not so; and grant, if
you please, for the sake of argument, that it is all "a specious
fallacy" indeed; what then? Does it follow that slavery _as it exists
in our state_, was just and lawful _in its origin_? By no means. For
say that Mr. Dew has by some miraculous effort of intellect, very
clearly established, in the face of Blackstone's demonstration, (and in
the face of our Bill of Rights also,) that a man _can_ sell himself;
can it be shown that, in point of fact, any single one of the slaves
who were imported into our colony from the year 1620 to the revolution,
_had_ actually sold himself to any one who claimed to be his owner? And
say, also, that the Annotator has proved, against the unanswerable
argument of his author, (and against the plainest principles of the law
of nature,) that a conqueror may justly enslave and export his prisoner
of war in any imaginable case whatever, can it be made to appear that
any one of the Africans brought to our shore was really captured, and
sold, in such a state of things? On the contrary, we have unhappily the
most ample evidence from history, that the whole of our exotic slaves
were either stolen from their native woods, and brought away against
their will, or under false and fraudulent promises which were never
performed; or bought for swords and rum, (fit price for such articles!)
from those who had captured them, not in just and necessary wars of
self-defence, but in predatory hostilities, excited and fomented for
the very purpose, by the worst of pirates, the foulest and most deadly
enemies of the human race.
But passing from this "grave sophistry," as he calls it, of Blackstone,
the Annotator now comes to the consideration of those "principles" on
which he chooses to rest his defence of slavery, and "which," he says,
"legitimate our title, whatever its origin may have been." But can
_any_ principles, I ask, do this? If slavery, as we have seen, is
clearly wrong in its origin; that is, if it is, in itself, a violation
of the law of nature, can any thing "legitimate" it; that is, make it
lawful; by that law? Is not the law of nature, like its author,
immutable, and eternal? And must not that, then, which is against this
law in one age, be equally against it in another, and in every
succeeding age, to the end of time? And if slavery, then, was unlawful
in its origin, must it not be so now, and continue to be so forever?
Or, can the mere lapse of time make it lawful? But that cannot alter
the nature of things. Indeed I may remind the Annotator, that our
municipal law even, while it legalizes slavery, does not allow any
length of time to bar a claim to freedom; and much less, then, can the
law of nature, which has no statute of limitations in its code.
But waiving this, let us see, for a moment, what these principles are
which the Annotator supposes may "legitimate our title, whatever its
origin may have been." What are they? Why, if I understand his view of
the subject, (though it is not, I think, very clearly conveyed,) it is
substantially this. By the decree of God, who has said, that "man shall
eat of the fruit of the earth by the sweat of his face," there must
always be a _working class_ of men, in every country, who must be
satisfied to labor for their victuals and clothes; that being the
natural and impassable stint of their wages. It makes no manner of
odds, therefore, whether the members of this working class be free or
slave: if they are fed and clothed, it is all that they have a right to
expect, or any reason to demand. In point of fact, indeed, the slave of
this class is perhaps rather better off than the freeman; since he is
usually better fed and better clothed; and if he has no hope of any
thing better, he has no fear of any thing worse; and, upon the whole,
has a pretty considerable balance of comfort on his side. It follows
from all this, that his master may, very _legitimately_, hold him down
as a slave, _ad indefinitum_, (that is, till slavery "runs out" of
itself, as he thinks it may in time,) without feeling any qualm of
conscience in the case, or giving himself any trouble whatever about
the matter.
Now all this is doubtless very pretty, and very imposing! It has,
however, I acknowledge, some small mixture of truth in it; and if it
were offered merely by way of apology for our slavery, and as a set-off
against the gross caricatures of it which are sometimes drawn by the
_ultras_ of the other side, and especially by our northern
abolitionists, I should hardly choose to criticise it too nicely.
Indeed I am happy to believe myself, that bad as the system
unquestionably is, it is yet not without some alleviating concomitants,
which materially soften its natural horrors, and may properly serve to
make us endure it with more patience, while we must. But if the
Annotator intends to go further than this, and to prove by these
remarks, (as I understand him to do,) that it is _right_ and _lawful_;
then I must protest against the reasoning as utterly vain and
irrelevant. For, granting all his premises, (though there are certainly
some rather strange and startling propositions among them; yet granting
them all for the sake of argument,) I really cannot perceive how the
conclusion follows from them. For if I grant that there must be _a
working class_, does it follow that we have a right to determine by
compulsion, or by positive law, who shall compose that class? The
decree of Divine Providence, as quoted by the Annotator himself, is
that "_man_," (that is, that all men,) shall work for his bread. What
right, then, has any one portion, or set of men, to slip their own
necks out of "the brazen collar," (as he calls it,) of toil; and fasten
it immoveably and inexorably upon another? Is not this at once evading
and altering, as it were, the counsel of the Creator of all? And if I
grant, also, that the slave is happier than the free laborer, does it
follow that his master may lawfully hold him as such? Does the question
of right depend simply, or at all, upon the degree of happiness which
the laborer enjoys? And have I, then, a right to make _any_ man work
for me, according to my will and pleasure, provided I take care to feed
and clothe him well, and make him as happy as any laborer can expect to
be? Would the Annotator think it exactly right to have such a principle
carried home to himself? But he would perhaps say, that I must not take
quite so great a range as that, but be satisfied to take my man from
"_the working class_." But who compose this working class? All those, I
presume, who have been reduced by the various misfortunes of human
life, to the hard necessity of laboring for others, for their daily
bread. But would any one of this class consent to have the principle of
compulsion brought to bear against him, and surrender forever all hope
and chance of "escaping to the upper air" of a higher class? Certainly
not. Then I must yet further take care, I suppose, to see that my man
whom I am to force to labor for me, on the Annotator's principle, shall
be _black_. So the question of right turns at last upon the color of
the skin. Admirable logic indeed!
But the Annotator thinks that he has found something like an argument
to prove the lawfulness of our slavery, in the text of his author, who
happens to say (on another point,) that, "by the law of England, all
single men between twelve years old and sixty, and married ones under
thirty years of age, and all single women between twelve and forty, not
having any visible livelihood, are _compellable_ by two justices to go
out to service in husbandry, or certain specified trades." "This," says
he, "is as much as to say, they who can only live by labor shall be
made to labor. What more do we? They compel him to choose a master. We
appropriate his labor to a master to whom use and a common interest
attach him, and who is generally the master of his choice. The wages of
both are the same"--to wit, victuals and clothes. And he adds
afterwards, "It is here; on this very point, of the necessity of
forcing those to labor who are unable to live honestly without labor,
that we base the defence of our system." This is pleasant indeed; but
does not the Annotator perceive that he has entirely mistaken _the
principle_ of the English law, which is not, as he states it, that
"they who can only live by labor shall be made to labor;" but that
those who can only live by labor, _and yet will not labor for
themselves_, and are, therefore, likely to become chargeable to the
parish, shall be made to labor _for a time_, and _for wages_, until
they have learned, in this way, to work freely and willingly, for their
own support. But, according to _this_ principle, it is easy to see that
hundreds and thousands of our slaves would be entitled to their freedom
at once; for it cannot be pretended that many of them at least would
not be both able and willing to labor for themselves; and if all, or
the larger part of them, would not, it can only be because their very
slavery itself has incapacitated them for voluntary toil. But can we,
then, plead a defect of theirs which is the consequence of our own act,
to justify that act, in this way? Surely this ground of defence must be
abandoned at once, as wholly untenable, and even dangerous in the
highest degree. At any rate, there is no reason to charge the English
law with countenancing our system. The English law says that a freeman
who can, and will not, work to support himself shall be made to do so;
in order that others may not be called upon to support him. Our law
says that all slaves shall be made to work for their masters, whether
they are able and willing to support themselves, or not. Is the
principle of both laws the same, or entirely different?
But the Annotator finds an excellent reason why our mode of compelling
all slaves to work, should even be preferred to the English one of
compelling freemen to do so in particular cases; and it is curious
enough. I must give it in his own words: "That such compulsion," says
he, "is often necessary, all reason and experience prove. But to a
people jealous of freedom, it is a delicate question whether such a
power can be safely trusted to the municipal authority. To make it
effectual it must be a power dangerous to liberty. It could never be
carried into effect but by a degree of rigor which must bow the spirit
of the laborer, and effectually disqualify him for the political
functions of a sovereign citizen." This is truly excellent. So, then,
it would be dangerous to our liberty to have such a law as that of
England which allows, in certain cases, a freeman who is likely to
become a freebooter, or at least a hanger-on upon the community, to be
compelled to work for himself; and not at all dangerous to that same
liberty to compel one half of our population to work for the other! It
would, forsooth, "bow the spirit of the laborer," (as if the vagabond
had any spirit to bow,) and "disqualify him for the political functions
of a sovereign citizen;" and so to prevent that occasional
disqualification of a few, we must systematically disqualify hundreds
and thousands from performing those same functions of freemen, which
are so important and interesting to the whole body politic! A notable
expedient indeed to preserve the purity and lustre of our liberty, from
all possible danger of destruction or decay!
Upon the whole, I must say that, in my judgment, the Annotator has
failed entirely either to invalidate Blackstone's argument against the
lawfulness of slavery in its origin, or to advance any principles
whatever which can legitimate it, as it exists in our state, at the
present time. I must not, however, by any means, be understood as
meaning to convey the idea that I consider it as altogether
indefensible before the tribunal of an impartial world. On the
contrary, I still hold, as I have always done, that under the peculiar
circumstances in which we find it amongst us, it is justifiable, or
rather excusable, upon the soundest principles of the law of nature;
and, more particularly, upon the principle of necessity and
self-defence. By the law of nature, I may take away the life of another
when I cannot otherwise defend my own. Of course, I may take away his
liberty in a like case; and, _a fortiori_, I may continue my custody of
his person, when he has been committed to my charge, however
wrongfully, by one in whose act I had no participation; and when I
cannot release him without hazarding my own safety, and his too. To
apply this principle to the subject before us; our fathers have
fastened this enormous evil upon us in the beginning without our
concurrence or consent; and we now find and feel it to be too great and
complicated for us to think of removing it at once. To emancipate our
slaves on the spot, would indeed, in all human probability, be followed
by the ruin of both parties; and would at least be an experiment too
tremendous in its aspect, and too uncertain in its issue, to be rashly
tried. In this state of things, therefore, we may, I conceive, most
rightfully and properly, continue to hold them, as we would hold
prisoners of war, whose persons, we have seen, we may lawfully confine
while it is necessary for us to do so in order to protect ourselves
from their hostilities; but whom, at the same time, we must sincerely
and earnestly desire to liberate, and send back to their own country,
as soon as we can.