“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.