Not content with that, he published to the world, and circulated

extensively, this uncalled-for libel on my State and my blood. Whatever

insults my State insults me. Her history and character have commanded my

pious veneration; and in her defence I hope I shall always be prepared,

humbly and modestly, to perform the duty of a son. I should have

forfeited my own self-respect, and perhaps the good opinion of my

countrymen, if I had failed to resent such an injury by calling the

offender in question to a personal account. It was a personal affair,

and in taking redress into my own hands I meant no disrespect to the

Senate of the United States or to this House. Nor, sir, did I design

insult or disrespect to the State of Massachusetts. I was aware of the

personal responsibilities I incurred, and was willing to meet them. I

knew, too, that I was amenable to the laws of the country, which afford

the same protection to all, whether they be members of Congress or

private citizens. I did not, and do not now believe, that I could be

properly punished, not only in a court of law, but here also, at the

pleasure and discretion of the House. I did not then, and do not now,

believe that the spirit of American freemen would tolerate slander in

high places, and permit a member of Congress to publish and circulate a

libel on another, and then call upon either House to protect him against

the personal responsibilities which he had thus incurred.

But if I had committed a breach of privilege, it was the privilege of

the Senate, and not of this House, which was violated. I was answerable

there, and not here. They had no right, as it seems to me, to

prosecute me in these Halls, nor have you the right in law or under

the Constitution, as I respectfully submit, to take jurisdiction over

offences committed against them. The Constitution does not justify them

in making such a request, nor this House in granting it. If, unhappily,

the day should ever come when sectional or party feeling should run so

high as to control all other considerations of public duty or justice,

how easy it will be to use such precedents for the excuse of arbitrary

power, in either House, to expel members of the minority who may have

rendered themselves obnoxious to the prevailing spirit in the House to

which they belong.

Matters may go smoothly enough when one House asks the other to punish

a member who is offensive to a majority of its own body; but how will it

be when, upon a pretence of insulted dignity, demands are made of

this House to expel a member who happens to run counter to its party

predilections, or other demands which it may not be so agreeable to

grant? It could never have been designed by the Constitution of the

United States to expose the two Houses to such temptations to collision,

or to extend so far the discretionary power which was given to either

House to punish its own members for the violation of its rules and

orders. Discretion has been said to be the law of the tyrant, and when

exercised under the color of the law, and under the influence of party

dictation, it may and will become a terrible and insufferable despotism.

This House, however, it would seem, from the unmistakable tendency of

its proceedings, takes a different view from that which I deliberately

entertain in common with many others.

So far as public interests or constitutional rights are involved, I have

now exhausted my means of defence. I may, then, be allowed to take a

more personal view of the question at issue. The further prosecution of

this subject, in the shape it has now assumed, may not only involve my

friends, but the House itself, in agitations which might be unhappy

in their consequences to the country. If these consequences could be

confined to myself individually, I think I am prepared and ready to meet

them, here or elsewhere; and when I use this language I mean what I say.

But others must not suffer for me. I have felt more on account of my two

friends who have been implicated,than for myself, for they have proven

that "there is a friend that sticketh closer than a brother." I will

not constrain gentlemen to assume a responsibility on my account, which

possibly they would not run on their own.

Sir, I cannot, on any own account, assume the responsibility, in the

face of the American people, of commencing a line of conduct which in my

heart of hearts I believe would result in subverting the foundations of

this Government, and in drenching this Hall in blood. No act of mine,

on my personal account, shall inaugurate revolution; but when you,

Mr. Speaker, return to your own home, and hear the people of the great

North--and they are a great people--speak of me as a bad man, you will

do me the justice to say that a blow struck by me at this time would

be followed by revolution--and this I know. (Applause and hisses in the

gallery.)

Mr. Brooks (resuming):--If I desired to kill the Senator, why did not I

do it? You all admit that I had him in my power. Let me tell the member

from New Jersey that it was expressly to avoid taking life that I used

an ordinary cane, presented to me by a friend in Baltimore, nearly three

months before its application to the "bare head" of the Massachusetts

Senator. I went to work very deliberately, as I am charged--and this

is admitted,--and speculated somewhat as to whether I should employ a

horsewhip or a cowhide; but knowing that the Senator was my superior

in strength, it occurred to me that he might wrest it from my hand, and

then--for I never attempt anything I do not perform--I might have been

compelled to do that which I would have regretted the balance of my

natural life.

The question has been asked in certain newspapers, why I did not invite

the Senator to personal combat in the mode usually adopted. Well, sir,

as I desire the whole truth to be known about the matter, I will for

once notice a newspaper article on the floor of the House, and answer

here.

My answer is, that the Senator would not accept a message; and having

formed the unalterable determination to punish him, I believed that the

offence of "sending a hostile message," superadded to the indictment

for assault and battery, would subject me to legal penalties more severe

than would be imposed for a simple assault and battery. That is my

answer.

Now, Mr. Speaker, I have nearly finished what I intended to say. If

my opponents, who have pursued me with unparalleled bitterness, are

satisfied with the present condition of this affair, I am. I return

my thanks to my friends, and especially to those who are from

nonslave-owning States, who have magnanimously sustained me, and felt

that it was a higher honor to themselves to be just in their judgment

of a gentleman than to be a member of Congress for life. In taking my

leave, I feel that it is proper that I should say that I believe that

some of the votes that have been cast against me have been extorted by

an outside pressure at home, and that their votes do not express the

feelings or opinions of the members who gave them.

To such of these as have given their votes and made their speeches

on the constitutional principles involved, and without indulging in

personal vilification, I owe my respect. But, sir, they have written me

down upon the history of the country as worthy of expulsion, and in no

unkindness I must tell them that for all future time my self-respect

requires that I shall pass them as strangers.

And now, Mr. Speaker, I announce to you and to this House, that I am no

longer a member of the Thirty-Fourth Congress.

(Mr. Brooks then walked out of the House of Representatives.)

JUDAH P. BENJAMIN,

OF LOUISIANA. (BORN 1811, DIED 1864.)

ON THE PROPERTY DOCTRINE, OR THE RIGHT OF PROPERTY IN SLAVES;

SENATE OF THE UNITED STATES, MARCH 11, 1858.

MR. PRESIDENT, the whole subject of slavery, so far as it is involved

in the issue now before the country, is narrowed down at last to a

controversy on the solitary point, whether it be competent for the

Congress of the United States, directly or indirectly, to exclude

slavery from the Territories of the Union. The Supreme Court of the

United States have given a negative answer to this proposition, and

it shall be my first effort to support that negation by argument,

independently of the authority of the decision.

It seems to me that the radical, fundamental error which underlies the

argument in affirmation of this power, is the assumption that slavery

is the creature of the statute law of the several States where it is

established; that it has no existence outside of the limits of those

States; that slaves are not property beyond those limits; and

that property in slaves is neither recognized nor protected by

the Constitution of the United States, nor by international law. I

controvert all these propositions, and shall proceed at once to my

argument.

Mr. President, the thirteen colonies, which on the 4th of July, 1776,

asserted their independence, were British colonies, governed by British

laws. Our ancestors in their emigration to this country brought with

them the common law of England as their birthright. They adopted its

principles for their government so far as it was not incompatible with

the peculiarities of their situation in a rude and unsettled country.

Great Britain then having the sovereignty over the colonies, possessed

undoubted power to regulate their institutions, to control their

commerce, and to give laws to their intercourse, both with the mother

and the other nations of the earth. If I can show, as I hope to be able

to establish to the satisfaction of the Senate, that the nation thus

exercising sovereign power over these thirteen colonies did establish

slavery in them, did maintain and protect the institution, did originate

and carry on the slave trade, did support and foster that trade, that

it forbade the colonies permission either to emancipate or export their

slaves, that it prohibited them from inaugurating any legislation in

diminution or discouragement of the institution--nay, sir, more, if, at

the date of our Revolution I can show that African slavery existed in

England as it did on this continent, if I can show that slaves were sold

upon the slave mart, in the Exchange and other public places of resort

in the city of London as they were on this continent, then I shall not

hazard too much in the assertion that slavery was the common law of the

thirteen States of the Confederacy at the time they burst the bonds that

united them to the mother country.

* * * * *

This legislation, Mr. President, as I have said before, emanating from

the mother country, fixed the institution upon the colonies. They could

not resist it. All their right was limited to petition, to remonstrance,

and to attempts at legislation at home to diminish the evil. Every

such attempt was sternly repressed by the British Crown. In 1760, South

Carolina passed an act prohibiting the further importation of African

slaves. The act was rejected by the Crown; the Governor was reprimanded;

and a circular was sent to all the Governors of all the colonies,

warning them against presuming to countenance such legislation. In

1765, a similar bill was twice read in the Assembly of Jamaica. The news

reached Great Britain before its final passage. Instructions were sent

out to the royal Governor; he called the House of Assembly before him,

communicated his instructions, and forbade any further progress of the

bill. In 1774, in spite of this discountenancing action of the mother

Government, two bills passed the Legislative Assembly of Jamaica; and

the Earl of Dartmouth, then Secretary of State, wrote to Sir Basil

Keith, the Governor of the colony, that "these measures had created

alarm to the merchants of Great Britain engaged in that branch of

commerce;" and forbidding him, "on pain of removal from his Government,

to assent to such laws."

Finally, in 1775--mark the date--1775--after the revolutionary struggle

had commenced, whilst the Continental Congress was in session, after

armies had been levied, after Crown Point and Ticonderoga had been taken

possession of by the insurgent colonists, and after the first blood

shed in the Revolution had reddened the spring sod upon the green at

Lexington, this same Earl of Dartmouth, in remonstrance from the agent

of the colonies, replied:

"We cannot allow the colonies to check or discourage in any degree a

traffic so beneficial to the nation."

I say, then, that down to the very moment when our independence was won,

slavery, by the statute law of England, was the common law of the old

thirteen colonies. But, sir, my task does not end here. I desire to show

you that by her jurisprudence, that by the decisions of her judges, and

the answers of her lawyers to questions from the Crown and from public

bodies, this same institution was declared to be recognized by the

common law of England; and slaves were declared to be, in their

language, merchandise, chattels, just as much private property as any

other merchandise or any other chattel.

A short time prior to the year 1713, a contract had been formed between

Spain and a certain company, called the Royal Guinea Company, that had

been established in France. This contract was technically called in

those days an _assiento_. By the treaty of Utrecht of the 11th of April,

1713, Great Britain, through her diplomatists, obtained a transfer of

that contract. She yielded considerations for it. The obtaining of that

contract was greeted in England with shouts of joy. It was considered

a triumph of diplomacy. It was followed in the month of May, 1713, by a

new contract in form, by which the British Government undertook, for

the term of thirty years then next to come, to transport annually

4800 slaves to the Spanish American colonies, at a fixed price. Almost

immediately after this new contract, a question arose in the English

Council as to what was the true legal character of the slaves thus to be

exported to the Spanish American colonies; and, according to the forms

of the British constitution, the question was submitted by the Crown in

council to the twelve judges of England. I have their answer here; it is

in these words:

"In pursuance of His Majesty's order in council, hereunto annexed, we do

humbly certify our opinion to be that negroes are merchandise."

Signed by Lord Chief-Justice Holt, Judge Pollexfen, and eight other

judges of England.

Mr. Mason. What is the date of that?

Mr. Benjamin. It was immediately after the treaty of Utrecht, in 1713.

Very soon afterwards the nascent spirit of fanaticism began to obtain

a foothold in England; and although large numbers of negro slaves were

owned in Great Britain, and, as I said before, were daily sold on the

public exchange in Lon-don, questions arose as to the right of the

owners to retain property in their slaves; and the merchants of London,

alarmed, submitted the question to Sir Philip Yorke, who afterwards

became Lord Hardwicke, and to Lord Talbot, who were then the solicitor

and attorney-general of the kingdom. The question was propounded to

them, "What are the rights of a British owner of a slave in England?"

and this is the answer of those two legal functionaries. They certified

that "a slave coming from the West Indies to England with or without his

master, doth not become free; and his master's property in him is not

thereby determined nor varied, and the master may legally compel him to

return to the plantations."

And, in 1749, the same question again came up before Sir Philip Yorke,

then Lord Chancellor of England, under the title of Lord Hardwicke, and,

by a decree in chancery in the case before him, he affirmed the doctrine

which he had uttered when he was attorney-general of Great Britain.

Things thus stood in England until the year 1771, when the spirit

of fanaticism, to which I have adverted, acquiring strength, finally

operated upon Lord Mansfield, who, by a judgment rendered in a case

known as the celebrated Sommersett case, subverted the common law of

England by judicial legislation, as I shall prove in an instant. I say

it not on my own authority. I would not be so presumptuous. The Senator

from Maine (Mr. Fessenden) need not smile at my statement. I will give

him higher authority than anything I can dare assert. I say that in 1771

Lord Mansfield subverted the common law of England in the Sommersett

case, and decided, not that a slave carried to England from the West

Indies by his master thereby became free, but that by the law of

England, if the slave resisted the master, there was no remedy by which

the master could exercise his control; that the colonial legislation

which afforded the master means of controlling his property had no

authority in England, and that England by her laws had provided no

substitute for that authority. That was what Lord Mansfield decided.

I say this was judicial legislation. I say it subverted the entire

previous jurisprudence of Great Britain. I have just adverted to the

authorities for that position. Lord Mansfield felt it. The case was

argued before him over and over again, and he begged the parties to

compromise. They said they would not. "Why," said he, "I have known

six of these cases already, and in five out of the six there was a

compromise; you had better compromise this matter"; but the parties said

no, they would stand on the law; and then, after holding the case up

two terms, Lord Mansfield mustered up courage to say just what I have

asserted to be his decision; that there was no law in England affording

the master control over his slave; and that therefore the master's

putting him on board of a vessel in irons, being unsupported by

authority derived from English law, and the colonial law not being in

force in England, he would discharge the slave from custody on _habeas

corpus_, and leave the master to his remedy as best he could find one.

Mr. Fessenden. Decided so unwillingly.

Mr. Benjamin. The gentleman is right--very unwillingly. He was driven

to the decision by the paramount power which is now perverting the

principles, and obscuring the judgment of the people of the North; and

of which I must say there is no more striking example to be found than

its effect on the clear and logical intellect of my friend from Maine.

Mr. President, I make these charges in relation to that judgment,

because in them I am supported by an intellect greater than Mansfield's;

by a judge of resplendent genius and consummate learning; one who, in

all questions of international law, on all subjects not dependent upon

the peculiar municipal technical common law of England, has won for

himself the proudest name in the annals of her jurisprudence--the

gentleman knows well that I refer to Lord Stowell. As late as 1827,

twenty years after Great Britain had abolished the slave trade, six

years before she was brought to the point of confiscating the property

of her colonies which she had forced them to buy, a case was brought

before that celebrated judge; a case known to all lawyers by the name of

the slave Grace. It was pretended in the argument that the slave Grace

was free, because she had been carried to England, and it was said,

under the authority of Lord Mansfield's decision in the Sommersett

case, that, having once breathed English air, she was free; that the

atmosphere of that favored kingdom was too pure to be breathed by a

slave. Lord Stowell, in answering that legal argument, said that after

painful and laborious research into historical records, he did not find

anything touching the peculiar fitness of the English atmosphere for

respiration during the ten centuries that slaves had lived in England.

* * * * *

After that decision had been rendered, Lord Stowell, who was at that

time in correspondence with Judge Story, sent him a copy of it, and

wrote to him upon the subject of his judgment. No man will doubt the

anti-slavery feelings and proclivities of Judge Story. He was asked to

take the decision into consideration and give his opinion about it. Here

is his answer:

"I have read, with great attention, your judgment in the slave case.

Upon the fullest consideration which I have been able to give the

subject, I entirely concur in your views. If I had been called upon to

pronounce a judgment in a like case, I should have certainly arrived at

the same result."

That was the opinion of Judge Story in 1827; but, sir, whilst

contending, as I here contend, as a proposition, based in history,

maintained by legislation, supported by judicial authority of the

greatest weight, that slavery, as an institution, was protected by

the common law of these colonies at the date of the Declaration of

Independence, I go further, though not necessary to my argument, and

declare that it was the common law of North and South America alike.

* * * * *

Thus, Mr. President, I say that even if we admit for the moment that

the common law of the nations which colonized this continent, the

institution of slavery at the time of our independence, was dying away

by the manumissions either gratuitous or for a price of those who

held the people as slaves, yet, so far as the continent of America was

concerned, North and South, there did not breathe a being who did

not know that a negro, under the common law of the continent, was

merchandise, was property, was a slave, and that he could only extricate

himself from that status, stamped upon him by the common law of the

country, by positive proof of manumission. No man was bound to show

title to his negro slave. The slave was bound to show manumission under

which he had acquired his freedom, by the common law of every colony.

Why, sir, can any man doubt, is there a gentleman here, even the Senator

from Maine, who doubts that if, after the Revolution, the different

States of this Union had not passed laws upon the subject to abolish

slavery, to subvert this common law of the continent, every one of these

States would be slave States yet? How came they free States? Did not

they have this institution of slavery imprinted upon them by the power

of the mother country? How did they get rid of it? All, all must admit

that they had to pass positive acts of legislation to accomplish this

purpose. Without that legislation they would still be slave States.

What, then, becomes of the pretext that slavery only exists in those

States where it was established by positive legislation, that it has

no inherent vitality out of those States, and that slaves are not

considered as property by the Constitution of the United States?

When the delegates of the several colonies which had thus asserted their

independence of the British Crown met in convention, the decision of

Lord Mansfield in the Sommersett case was recent, was known to all. At

the same time, a number of the northern colonies had taken incipient

steps for the emancipation of their slaves. Here permit me to say, sir,

that, with a prudent regard to what the Senator from Maine (Mr. Hamlin)

yesterday called the "sensitive pocket-nerve," they all made these

provisions prospective. Slavery was to be abolished after a certain

future time--just enough time to give their citizens convenient

opportunity for selling the slaves to southern planters, putting the

money in their pockets, and then sending to us here, on this floor,

representatives who flaunt in robes of sanctimonious holiness; who make

parade of a cheap philanthropy, exercised at our expense; and who say

to all men: "Look ye now, how holy, how pure we are; you are polluted by

the touch of slavery; we are free from it."

* * * * *

Now, sir, because the Supreme Court of the United States says--what

is patent to every man who reads the Constitution of the United

States--that it does guaranty property in slaves,it has been attacked

with vituperation here, on this floor, by Senators on all sides. Some

have abstained from any indecent, insulting remarks in relation to the

Court. Some have confined themselves to calm and legitimate argument. To

them I am about to reply. To the others, I shall have something to say a

little later. What says the Senator from Maine (Mr. Fessenden)? He says:

"Had the result of that election been otherwise, and had not the

(Democratic) party triumphed on the dogma which they had thus

introduced, we should never have heard of a doctrine so utterly at

variance with all truth; so utterly destitute of all legal logic; so

founded on error, and unsupported by anything like argument, as is the

opinion of the Supreme Court."

He says, further:

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