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.

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