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: