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.
“Who wickedly is wise, or madly brave,
Is but the more a fool, the more a knave.”
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,--
“Slaves cannot breathe in England; if their lungs
Receive our air, that moment they are free;
They touch our country and their shackles fall.”[150]