Part 12

More tardily, but with equal force, the Methodists declared against Slavery, speaking by such great preachers as George Whitefield and John Wesley. From the historian Hildreth, whose work appeared some time before the Dred Scott decision, we learn that the Methodist Episcopal Church, just before the adoption of the Constitution, disqualified slaveholders from being members, and that Coke, the first bishop, was exceedingly jealous on this subject, although, unhappily, the rule was afterwards relaxed.[123] The Presbyterians of the United Synod of New York and Philadelphia, in 1787, proposed nothing less than “to procure eventually the final Abolition of Slavery in America.”[124] The Baptists of Virginia, in 1789, declared Slavery “a violent deprivation of the rights of Nature, and inconsistent with republican government.”[125] The Congregationalists of New England testified most brilliantly by the celebrated theologian, Samuel Hopkins, who brought his church at Newport to declare “the slave-trade and the slavery of the Africans, as it has taken place among us, is a gross violation of the righteousness and benevolence which are so much inculcated in the Gospel, and therefore we will not tolerate it in this church.”[126] Already, in 1776, he had put forth a tract, showing it to be the duty and interest of the American Colonies to emancipate all their African slaves, and declaring that Slavery is “in every instance wrong, unrighteousness, and oppression, a very great and crying sin, there being nothing of the kind equal to it on the face of the earth”;[127] and in 1791, soon after the adoption of the National Constitution, the second Jonathan Edwards, a twice-honored name, joined in this testimony.[128] But all this was forgotten by the Chief Justice.

Nor did he remember how, before the National Constitution, the opposition to Slavery, and sympathy with the African, found expression in Abolition Societies. That of Pennsylvania was formed in 1775, and bore the honorable title, “Society for the Abolition of Slavery, the Relief of Free Negroes unlawfully held in Bondage, and for improving the African Race.” Its President at the very adoption of the Constitution was Benjamin Franklin, who, in this post, as elsewhere, bore his testimony that the African had rights which the white man was bound to respect. In 1785 began in New York a “Society for promoting the Manumission of Slaves, and protecting such of them as have been or may be liberated,” with John Jay as President, who, like Franklin, bore his testimony in this post, as elsewhere. In 1786, this distinguished individual drafted and signed a memorial to the Legislature of New York against Slavery, declaring that the men held as slaves by the laws of the State were free by the law of God; and this memorial was signed by Robert R. Livingston and Alexander Hamilton. In Maryland, the State of the Chief Justice, an Abolition Society was formed in 1789, and among its officers were Samuel Chase, a signer of the Declaration of Independence, and Luther Martin, a member of the Convention that framed the National Constitution. How active these societies were in petitioning Congress, shortly afterwards, belongs to the history of our country. A petition was headed by Franklin, which, after pleading for the rights of all, “without distinction of color,” entreated Congress that it would “step to the very verge of the power vested in it, for discouraging every species of traffic in the persons of our fellow-men.”[129] All this is found in so common a book as the history by William Goodell, already quoted; but the Chief Justice knew it not.

I call attention especially to Maryland, where, at the very date of the Constitution, and in the Legislature of the State, a generous voice was lifted against Slavery by no less a person than William Pinkney, so famous as diplomatist, Senator, and consummate lawyer. He did not spare words. According to him, Slavery was “iniquitous and most dishonorable,” “founded in a disgraceful traffic,” “its continuance as shameful as its origin,”--and he bravely declared, that, “by the eternal principles of natural justice, no master in the State has a right to hold his slave in bondage for a single hour.”[130] There also was the neighbor State of Delaware, where, at the beginning of our Revolution, under date of “Wilmington, Sixth Month 20th, 1775,” Daniel Byrnes put forth a broadside entitled “A Short Address to the English Colonies in North America,” where he exposes the wrong to the African, and inquires, “How can any have the confidence to put up their addresses to a God of impartial justice, and ask of Him success in a struggle for freedom, who at the same time are keeping others in a state of abject slavery?” But the Chief Justice, whose long life was passed near the home of Pinkney and of Byrnes, yet, in face of their unanswerable testimony, utters his strange extravagance.

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Pass now to England, and here the falsification is kindred to that I have exposed with regard to our own country; and when we consider how English law, English history, and English literature are familiar to all educated lawyers among us, it is painful to observe the strange oblivion that overcame the Chief Justice with regard to their most brilliant chapters.

As early as 1569, in the reign of Queen Elizabeth, occurred the famous case of the slave brought from Russia, whose master sought to scourge him, when it was grandly resolved that “England was too pure an air for slaves to breathe in.”[131] This case was cited by the managers of the Commons, during the Long Parliament, on the impeachment of the judges for their proceedings against John Lilburn and John Wharton;[132] so that it took a conspicuous place, not only in English law, but also in political history. The same principle is also found in the Introduction to Holinshed’s Chronicles, written in 1586, where, describing England, it is said: “As for slaves and bondmen, we have none; nay, such is the privilege of our country, by the especial grace of God and bounty of our princes, that, if any come hither from other realms, so soon as they set foot on land they become so free of condition as their masters, whereby all note of servile bondage is utterly removed from them.”[133] Such was English law at that early day, according to great authorities. And in the reign of Charles the First the same humanity appeared in literature, when Fuller, describing “the Good Sea-Captain,” says, “In taking a prize, he most prizeth the men’s lives whom he takes, though some of them may chance to be negroes or savages”; and then, “But our captain counts the image of God nevertheless His image cut in ebony, as if done in ivory.”[134]

Other cases followed. In the time of Queen Anne, Lord Chief Justice Holt decided that “as soon as a negro comes into England he becomes free: one may be a villein in England, but not a slave”; and Mr. Justice Powell, his associate, said, “The law takes no notice of a negro,”[135]--in other words, recognizes no difference between him and a white man. As early as 1696, the same eminent Chief Justice, giving judgment in another case, said, “Trover will not lie for a negro.”[136] In 1706, in still another case, he said, “The Common Law takes no notice of negroes being different from other men.”[137] Lord Campbell, referring to some of these authorities, in his Life of the Chief Justice, says that he “was the first to lay down the doctrine, which was afterwards fully established in the case of Somerset the Negro, that the _status_ of Slavery cannot exist in England, and that as soon as a slave breathes the air of England he is free.”[138] In 1762, Lord Northington, deciding a case in Chancery where the master claimed the benefit in donation to a negro, said: “As soon as a man puts foot on English ground he is free; a negro may maintain an action against his master for ill usage, and may have a _Habeas Corpus_, if restrained of his liberty.”[139] These cases were crowned by the immortal judgment of Lord Mansfield in the Somerset case, where, after elaborate argument at the bar, and protracted adjournments of the court, it was solemnly decided, in 1772, that Slavery “is so odious that nothing can be suffered to support it but _positive law_,”[140] and since no such law could be shown in England, Slavery was impossible there. This case, besides constituting an epoch in the history of Liberty, is memorable for the argument of that learned lawyer, Francis Hargrave, undoubtedly a masterpiece of the English bar. It has been cited so constantly since,[141] that nothing short of the waters of Lethe can account for the forgetfulness of the Chief Justice with regard to it.

Scotland, although having a different jurisprudence, asserted the same principle, side by side with England. Sir Thomas Craig, in his work on Feudal Law, one of the chief monuments of Scottish jurisprudence, testifies that Slavery was unknown in his country in the reign of Queen Elizabeth, when he also flourished, and that there were no laws to regulate it.[142] In 1778, the question was presented to the courts on the claim of a master over a negro and it was found, on appeal, “that the dominion assumed over this negro under the law of Jamaica, being unjust, could not be supported in this country to any extent; that, therefore, the defendant had no right to the negro’s service for any space of time, nor to send him out of the country against his consent.”[143]

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The literature of both countries was in harmony with the jurisprudence. Here I give the words of two Englishmen, John Locke and Samuel Johnson, and two Scotchmen, Adam Smith and David Hume. John Locke portrayed Slavery as “so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hardly to be conceived that an Englishman, much less a gentleman, should plead for it.”[144] Samuel Johnson exhibited “the planters of America” as “a race of mortals whom no other man wishes to resemble.”[145] Adam Smith wrote: “There is not a negro from the coast of Africa who does not, in respect to contempt of death and torture, possess a degree of magnanimity which the soul of his sordid master is too often scarce capable of conceiving.”[146] I quote David Hume at length, because his testimony is less known.

“The remains which are found of Domestic Slavery in the American colonies and among some European nations would never, surely, create a desire of rendering it more universal. The little humanity commonly observed in persons accustomed from their infancy to exercise so great authority over their fellow-creatures, and to trample upon human nature, were sufficient alone to disgust us with that unbounded dominion. Nor can a more probable reason be assigned for the severe, I might say barbarous, manners of ancient times than the practice of domestic slavery, by which every man of rank was rendered a petty tyrant, and educated amidst the flattery, submission, and low debasement of his slaves.”[147]

It is not improbable that this passage suggested to Colonel Mason, of Virginia, his condemnation of Slavery, as producing “the most pernicious effect on manners; every master of slaves is born a petty tyrant”;[148] and also the remarkable representation by Jefferson of the effect on “manners,” when he says, “The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submission on the other.”[149]

To this increasing testimony, where philosophy and literature unite, against the “axiom” of our Chief Justice, I add that of Granville Sharp, England’s earliest Abolitionist, who, more than any other person, was inspired to bear witness. Through his persistent purpose the case of Somerset was presented for hearing and pressed to judgment. The “axiom” was rejected by his life. In 1769, he wrote a tract entitled “A Representation of the Injustice and Dangerous Tendency of tolerating Slavery, or of admitting the least Claim of Private Property in the Persons of Men, in England.” Others followed. At the same time he was the watchful guardian of colored persons, offering them friendly protection.

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Poetry and eloquence gave expression to the proud declaration of English law. Cowper’s “Task” appeared in 1785, with the exulting words,--

“Slaves cannot breathe in England; if their lungs Receive our air, that moment they are free; They touch our country and their shackles fall.”[150]

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.

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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]

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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.”