And, yet again, he adduces an authority which ought to be conclusive on the present occasion: it is that of New Jersey, on the formation of the Constitution:—

But the power of regulating trade “among the States” stands on the same reason, and also on the same text of the Constitution.

And yet, in face of these principles, we have a gigantic monopoly organized by New Jersey, composed of several confederate corporations, whose capital massed together is said to reach upwards of $27,537,977,—a capital not much inferior to that of the United States Bank, which once seemed to hold “divided empire” with the National Government itself. And this transcendent monopoly, thus vast in resources, undertakes to levy a toll on the commerce, the passengers, the mails, and the troops of the Union in transit between two great cities, both outside New Jersey. In attitude and pretension the grasping monopoly is not unlike Apollyon, in Bunyan’s “Pilgrim’s Progress,” whose usurpation is thus described:—

New Jersey is the Valley of Humiliation through which all travellers north and south from the city of New York to the city of Washington must pass; and the monopoly, like Apollyon, claims them all as “subjects,” saying, “For all that country is mine, and I am the prince and god of it.”

The enormity of the Usurpation is seen in its natural consequences. New Jersey claims the right to levy a tax for State revenue on passengers and freight in transit across her territory from State to State,—in other words, to levy a tax on “commerce among the several States.” Of course the right to tax is the right to prohibit. The same power which can exact “ten cents from every passenger,” according to the cry of the Camden and Amboy Railroad, by the voice of its counsel, may exact ten dollars, or any other sum, and thus effectively close this great avenue of communication.

Again, if New Jersey can successfully play this game of taxation, and compel tribute from the domestic commerce of the Union traversing her territory on the way from State to State, then may every other State do likewise. New York, with her central power, may build up an overshadowing monopoly and a boundless revenue, while all the products and population of the West traversing her territory on the way to the sea, and all the products and population of the East, with the contributions of foreign commerce, traversing her territory on the way to the West, are compelled to pay tribute. Pennsylvania, holding a great highway of the Union,—Maryland, constituting an essential link in the chain of communication with the national capital,—Ohio, spanning from lake to river, and forming a mighty ligament of States, east and west,—Indiana, enjoying the same unsurpassed opportunities,—Illinois, girdled by States with all of which it is dovetailed by railroads, east and west, north and south,—Kentucky, guarding the gates of the Southwest,—and, finally, any one of the States on the long line of the Pacific Railroad,—may enter upon a similar career of unscrupulous exaction, until anarchy sits supreme, and there are as many different tributes as there are States. If the Union should continue to exist, it would be only as a name. The national unity would be destroyed.

The taste of revenue is to a government like the taste of blood to a wild beast, exciting and maddening the energies, so that it becomes deaf to suggestions of justice; and the difficulties must increase, where this taxation is enforced by a comprehensive monopoly. The State, once tasting this blood, sees only an easy way of obtaining the means it desires; and other States will yield to the same temptation. The poet, after picturing vice as a monster of frightful mien, tells us in familiar words,—

A profitable Usurpation, like that of New Jersey, would be a tempting example to other States. “It is only the first step that costs.” Let this Usurpation be sanctioned by Congress, and you hand over the domestic commerce of the Union to a succession of local imposts. Each State will be a tax-gatherer at the expense of the Union. Each State will play the part of Don Quixote, and the Union will be Sancho Panza, not only bound to contributions, but driven to receive on bare back the lashes which were the penance of the knightly adventurer. If there be any single fruit of our national unity, if there be any single element of the Union, if there be any single triumph of the Constitution to be placed above all others, it is the freedom of commerce between the States, under which free trade, the aspiration of philosophy, is assured to all citizens of the Union, as they circulate through our whole broad country, without hindrance from any State. But this vital principle is now in jeopardy.

Keep in mind that it is the tax imposed on commerce between New York and Philadelphia, two cities outside the State of New Jersey, which I denounce. I have denounced it as hostile to the Union. I also denounce it as hostile to the spirit of the age, which is everywhere overturning the barriers of commerce. The robber castles, once compelling payment of toll on the Rhine, were long ago dismantled, and exist now only as monuments of picturesque beauty. Kindred pretensions in other places have been overthrown or trampled out. Duties levied by Denmark on all vessels passing through the Sound and the Belts, duties levied by Hanover on the goods of all nations at Stade on the Elbe, tolls exacted on the Danube in its protracted course, tolls exacted by Holland on the busy waters of the Scheldt, and transit imposts within the great Zollverein of Germany, have all been abolished; and in this work of enfranchisement the Government of the United States led the way, insisting, in the words of President Pierce, in his Annual Message, “on the right of free transit into and from the Baltic.”[91] But the right of free transit across the States of the Union is now assailed. Can you who reached so far to secure free transit in the Baltic now hesitate in its defence here at home?

Thank God, within the bounds of the Union, under the National Constitution, commerce is made free. As the open sea is the highway of nations, so is this Union made the highway of the States, with all their commerce, and no State can claim any exclusive property therein. The Union is a mare liberum, beyond the power of any State, and not a mare clausum, subject to as many tyrannies as there are States. And yet the State of New Jersey asserts the power of closing a highway of the Union.

Such a pretension, so irrational and destructive, cannot be dealt with tenderly. Like the serpent, it must be bruised on the head. Nor can there be wise delay. Every moment of life yielded to such a Usurpation is like the concession once in an evil hour yielded to Nullification, kindred in origin and character. The present pretension of New Jersey belongs to the same school with that abhorred and blood-bespattered pretension of South Carolina.

Perhaps, Sir, it is not unnatural that the doctrines of South Carolina on State Rights should obtain shelter in New Jersey. Like sees like. There is a common bond among the sciences, among the virtues, among the vices,—and so, also, among the monopolies. The monopoly founded on the hideous pretension of property in man obtained responsive sympathy in that other monopoly founded on the greed of unjust taxation, and both were naturally upheld in the name of State Rights. Both must be overthrown in the name of the Union. South Carolina must cease to be a Slave State, and New Jersey must also cease her disturbing pretension. All hail to the genius of Universal Emancipation! All hail to the Union, victorious over the Rebellion,—victorious, also, over a Usurpation which menaces the unity of the Republic!

REPRESENTATION OF VIRGINIA IN THE SENATE.

I regret that a question of this magnitude has been precipitated upon the Senate at this late period of the session, when there is so much public business which has not yet received the attention of either House of Congress. The Senator from Michigan [Mr. Howard] does not exaggerate its magnitude. Sir, it is much to be a Senator of the United States, with all the powers and privileges pertaining to that office, legislative, diplomatic, and executive; and the question is, whether all these shall be recognized in the gentleman whose certificate has been sent to the Chair. I thought it my duty, on hearing the certificate read as I entered the Chamber, to move its reference to the Committee on the Judiciary. I am astonished that there can be any hesitation in that reference. Senators who hesitate show insensibility to the character of the question. Will the Senate act blindfold, or with eyes open? I insist that on such a question it shall act with eyes open, wide open; and I know no way in which this can be accomplished, except through the intervention of a responsible Committee. Therefore, Sir, I proposed that the credentials should be referred. It will be the duty of the Committee, as my friend from Michigan suggests, to consider, in the first place, whether a State in armed rebellion, like Virginia, can have Senators on this floor. That is a great question, constitutional, political, practical. It will be their duty then to consider whether the gentleman whose credentials are before us is the legal choice of any State under the National Constitution. Now, Sir, I do not intend to prejudge either of these questions. I simply open them for consideration.

I say, Sir, I do not mean to prejudge these questions; but I do insist that a measure of this importance shall not be acted on without due consideration, and in absolute indifference to facts staring us in the face, glaring upon us every day in every newspaper that we read. Sir, you cannot be insensible to facts. It is in vain that Senators say that Virginia, now in war against the Union, is entitled to representation on this floor, when you have before you the inexorable fact that the greater part of the State is at this moment in the possession of an armed Rebellion, and that other fact, repeated by the newspapers of the land, that the body of men who have undertaken to send a Senator to Congress are little more than the Common Council of Alexandria. The question is distinctly presented, whether a representative of the Common Council of Alexandria is to enter this Chamber, and share the powers and privileges of my honorable friend near me, the Senator from New York [Mr. Morgan], or my friend farther from me, the Senator from Pennsylvania [Mr. Cowan]. I merely open these points, without undertaking to decide them, but simply as an unanswerable argument in favor of the reference.

Suppose it was matter of public notoriety that I came into this Chamber with a certificate from a body of men in Boston, little more in number and character than the Common Council of that city, not in fact supposed to represent the State; suppose this fact much received in the country; then I submit to the Senator whether it would not be the duty of the Senate, before receiving my credentials, to inquire into their origin.

REPUDIATION OF THE REBEL DEBT.

NO BUST FOR AUTHOR OF DRED SCOTT DECISION.

The apology is too obvious. “Nothing but good of the dead.” This is a familiar saying, which, to a certain extent, is acknowledged. But it is entirely inapplicable, when statues and busts are proposed in honor of the dead. Then, at least, truth must prevail.

If a man has done evil during life, he must not be complimented in marble. And if indiscreetly it is proposed to decree this signal honor, then the evil he has done must be exposed; nor shall any false delicacy seal my lips. It is not enough that he held high place, that he enjoyed worldly honors, or was endowed with intellectual gifts.

What is the office of Chief Justice, if it has been used to betray Human Rights? The crime is great according to the position of the criminal.

If asked, Sir, to mention the incident of our history, previous to the Rebellion, most worthy of condemnation, most calculated to cause the blush of shame, and most deadly in its consequences, I do not doubt that you would name the Dred Scott decision, and especially the unhallowed assertion of the Chief Justice. I say this with pain. I do not seek this debate. But when a proposition is made to honor the author of this enormity with a commemorative bust, at the expense of the country, I am obliged to speak plainly.

I am not aware that the English judges who decided contrary to Liberty in the case of ship-money, sustaining the king in those pretensions which ended in Civil War, have ever been commemorated in marble. I am not aware that Jeffreys, Chief Justice and Chancellor of England, famous for talents as for crimes, has found any niche in Westminster Hall. No, Sir. They have been left to the judgment of history; and there I insist that Taney shall be left in sympathetic companionship. Each was the tool of unjust power. But the power Taney served was none other than that Slave Power which has involved the country in hideous war.

I speak what cannot be denied, when I declare that the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Then and there judicial baseness reached its lowest point. You have not forgotten that terrible decision, where an unrighteous judgment was sustained by falsification of history. Of course the Constitution of the United States and every principle of Liberty were falsified; but historical truth was falsified also. I have here the authentic report of the case, where it appears that the Chief Justice, while enforcing his unjust conclusion, blasting a whole race, used the following language.

In these words, solemnly and authoritatively uttered by the Chief Justice of the United States, humanity and truth were set at nought, and the whole country was humbled. “Then I and you and all of us fell down, whilst bloody Slavery flourished over us.”

I quote his words fully, so that there can be no mistake. Here, then, is his expressed assertion, that at the Declaration of Independence in 1776, and the adoption of the National Constitution in 1789, in Europe as well as in our own country, colored men were regarded as having “no rights which the white man was bound to respect.” Now, Sir, this is false,—terribly false. It is notorious that there were States of the Union, where, at the adoption of the Constitution, colored persons were free, and even in the enjoyment of the electoral franchise, while in England the Somerset case had already decided that there could be no distinction of persons on account of color, and Scotland, France, and Holland had all declared the same rule. Even Spain had spoken by the voice of some of her best children. So had Portugal. So also had Italy, and the Catholic Church. On this point there is no question. And yet this Chief Justice, whom you would honor with a marble bust, had the strange effrontery to declare that at that time, as well abroad as at home, colored men were regarded as having “no rights which the white man was bound to respect”; and this he said to justify a brutal interpretation of the Constitution. Search judicial annals and you find no perversion of truth more flagrant.

Sir, it is not fit, it is not decent, that such a person should be commemorated by a vote of Congress,—especially at this time, when Liberty is at last recognized. If you have money to commemorate the dead, let it be in honor of the defenders of Liberty gathered to their fathers. There was John Quincy Adams. There, also, was Joshua R. Giddings. Let their busts be placed in the Court-Room, where with marble lips they can plead always for human rights, teaching judge and advocate the glory and the beauty of justice. Then will you do something not entirely unworthy of a regenerated land, something to be an example for future times, something to help fix the standard of history.

I know that in the Court-Room there are busts of the other Chief Justices. Very well. So in the Hall of the Doges, at Venice, there are pictures of all who filled that high office in unbroken succession, with the exception of Marino Falieri, who, although as venerable from years as Taney, was deemed unworthy of a place in the historic line. Where his picture should have been is a vacant space, testifying always to the justice of the Republic. Let such a vacant space in our Court-Room testify to the justice of our Republic, and may it speak in warning to every one who would betray Liberty!

At last I have the floor again. I rose at once to reply to the Senator from Maryland [Mr. Johnson], when he made his objurgatory vindication of the proposed bust; but the floor was given to others. And now, as I look at the clock, I see that I can only begin what I have to say.

Again let me declare that I am sorry to be drawn into this debate. But they who seek to canonize one of the tools of Slavery are responsible. Taney shall not be recognized as a saint by any vote of Congress, if I can help it.

The Senator has a bad cause, and I inferred that he thought so himself,—first, because he talked so loud, and, secondly, because he became personal. A good cause would have been discussed in softer voice, and without personality. The Senator becomes personal easily. In the sweep of his movement, he brushed against my distinguished friend from New Hampshire [Mr. Hale], and also against my colleague and myself, simply because we could not join in this oblation to the author of the Dred Scott decision. The Senator from New Hampshire and my colleague have already answered him in proper terms. But I say for my colleague what he could not say for himself. He can bear gibes for not being a lawyer. He is not, like the Senator, a counsellor of the Supreme Court of the United States, but in all the duties of Senator he is in every respect the equal of the Senator from Maryland.——

I have already said that Chief Justice Taney, in pronouncing that fatal judgment, falsified history. Judicial error is aggravated by such a falsification; and here the evidence is complete. His statement is precise, that for more than a century before the Declaration of Independence and the adoption of our Constitution people of the African race had “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations”; and this unhappy asseveration culminates in the words, “and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.” And he adds: “This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals, as well as in politics, which no one thought of disputing or supposed to be open to dispute.” This is plain, though failing in the precision which belongs to the bench. But how untrue! All this naturally ends in shutting out the unhappy African from citizenship, involving the right to sue in the courts of the United States.

Unhappily, at that time Slavery prevailed extensively; but it had already received many blows, while the rights of the African were asserted not only by individuals, but by communities. Nay, more, from the beginning, the axiom of the Chief Justice, which, according to him, no one supposed open to dispute, had been assailed. Great authorities, great names, together with legislative and judicial bodies, stood forth against it.

There is Massachusetts, my own honored Commonwealth. From the earliest days of her history Slavery found little favor with her Legislature or her people. As early as 1645 the Legislature sent back two negroes brought from Guinea in a Boston ship, and the next year repeated its testimony against “the heinous and crying sin of man-stealing.”[93] In the same spirit, John Eliot, the apostle to the Indians, presented a memorial to the Governor and Council against selling captured Indians into slavery, saying, “To sell souls for money seemeth to me a dangerous merchandise.”[94] In 1701, Boston desired her Representatives in the General Court “to promote the encouraging the bringing of white servants, and to put a period to negroes being slaves.”[95] At the same time Chief Justice Sewall, of a family constant in warfare with Slavery, published a tract entitled “The Selling of Joseph a Memorial,” where he maintained that “originally and naturally there is no such thing as Slavery,” and that “these Ethiopians, as black as they are, seeing they are the sons and daughters of the first Adam, the brethren and sisters of the last Adam, and the offspring of God, they ought to be treated with a respect agreeable.”[96] In this spirit, the judicature of Massachusetts, in 1770, made haste against Slavery, by declaring the principle of Emancipation,—according to one authority, two years before the famous Somerset case in England.[97] This was followed, in 1780, by the Declaration of Rights, announcing that “all men are born free and equal,” which the same judicature interpreted as abolishing Slavery; so that at the adoption of the National Constitution Slavery did not exist in Massachusetts. That this undoubted history should have been disregarded by the Chief Justice is more astonishing, when it is considered that the conclusion belonged to the jurisprudence of our country. In a case well known to all interested in the history of Slavery, and especially to lawyers, decided in 1836, Chief Justice Shaw said: “How, or by what act particularly, Slavery was abolished in Massachusetts, whether by the adoption of the opinion in Somerset’s case, as a declaration and modification of the Common Law, or by the Declaration of Independence, or by the [State] Constitution of 1780, it is not now very easy to determine; and it is rather a matter of curiosity than of utility, it being agreed on all hands, that, if not abolished before, it was so by the Declaration of Rights.”[98] And yet even these words are forgotten in this fatal decision.

Here we must mention Rhode Island with honor. This State, planted by Roger Williams, may point with pride to her early record on Slavery. At a General Court held May 19, 1652, after setting forth, that “there is a common course practised amongst Englishmen to buy negroes, to that end they may have them for service or slaves forever,” it was ordered, “that no black mankind, or white, being forced by covenant bond, or otherwise, to serve any man or his assigns longer than ten years, or until they come to be twenty-four years of age, if they be taken in under fourteen, from the time of their coming within the liberties of this colony.”[99] If Rhode Island afterwards departed from this law, it existed, nevertheless, as an example not to be forgotten by the Chief Justice. Nor should he have forgotten that Pennsylvania, as early as 1712, passed an act to prevent the increase of slaves, although it was annulled by the Crown,[100] and that this same State enacted, March 1, 1780, that all persons born in that State after that day were free at the age of twenty-eight years.[101] But all this is inconsistent with the famous “axiom” on which the Chief Justice founded his fearful superstructure.

I need go no further than the dissenting opinion of Mr. Justice Curtis, on this very occasion, to find, that, “at the time of the ratification of the Articles of Confederation, all free native-born inhabitants of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors on equal terms with other citizens.”[102] Was all this forgotten by the Chief Justice? But how could he forget the decision of the admirable Judge Gaston, of North Carolina, who, describing the State Constitution of 1776, says, that it “extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution”?[103]

Strangely, he forgets also an important passage of history, being nothing less than the point-blank refusal of the Continental Congress to insert the word “white” in the Articles of Confederation. The question came up June 25, 1778, on these words: “The Free Inhabitants of each of these States (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all privileges and immunities of free citizens in the several States.” The delegates from South Carolina, acting in the spirit of the Dred Scott decision, moved, in behalf of their State, to limit this guaranty to “free white inhabitants.” On the question of inserting the word “white,” eleven States voted, two in favor of the insertion, one was divided, and eight were against it. South Carolina, not disheartened, made another attempt, by moving to add, after the words “the several States,” the further clause, “according to the law of such States respectively for the government of their own free white inhabitants,” thus seeking again to limit the operation of this guaranty. This proposition was also voted down by the same decisive majority of eight to three.[104] Such was the authoritative testimony of our fathers. And in harmony with this action was the Resolution for the Temporary Government of the Western Territory “ceded or to be ceded by individual States to the United States,” dated April 23, 1784, and drawn by Jefferson, and also the famous Ordinance for the Government of the Northwestern Territory, drawn by Nathan Dane, of Massachusetts, adopted by the Confederation July 13, 1787, in both of which the voters were without distinction of color.

Still more incomprehensible is the assertion of the Chief Justice, when we glance at the political literature of our country. Not only in Massachusetts, but elsewhere, the “axiom” of the Chief Justice, “which no one thought of disputing, or supposed to be open to dispute,” was denied. Nobody did this in more energetic terms than General Oglethorpe, the founder of Georgia, who, in a letter to Granville Sharp, wrote, under date of October 13, 1776: “My friends and I settled the colony of Georgia, and by charter were established trustees, to make laws, &c. We determined not to suffer Slavery there.… We would not suffer Slavery (which is against the Gospel, as well as the fundamental law of England) to be authorized under our authority; we refused, as trustees, to make a law permitting such a horrid crime.”[105] In the same spirit, John Wesley, the founder of Methodism, who had witnessed the workings of Slavery on our continent and in the West Indies, declared “American Slavery the vilest that ever saw the sun,” and the “execrable sum of all villanies.” “Men-buyers” he stigmatizes as “exactly on a level with men-stealers,” the slaveholder as “partaker with a thief, and not a jot honester,” and the means whereby slaves are procured as “nothing near so innocent as picking of pockets, housebreaking, or robbery upon the highway.”[106] So also spoke James Otis, in his famous pamphlet entitled “The Rights of the British Colonists Asserted and Proved,” first published in 1764, and reprinted in London, when he said: “The Colonists are, by the Law of Nature, free-born, as, indeed, all men are, white or black.… Does it follow that it is right to enslave a man because he is black? Will short curled hair, like wool, instead of Christian hair, as it is called by those whose hearts are as hard as the nether millstone, help the argument? Can any logical inference in favor of Slavery be drawn from a flat nose, a long or a short face?”[107] And so spoke Benjamin Rush, the patriot physician of Philadelphia, in “An Address to the Inhabitants of the British Settlements on the Slavery of the Negroes in America,” where Slavery is exhibited as “repugnant to the genius of Christianity” and inconsistent with “the justice and goodness of the Supreme Being,” and “a Christian slave” is called “a contradiction in terms.”[108] To these testimonies add the familiar words of statesmen, especially of Patrick Henry, “It is a debt that we owe to the purity of our religion, to show that it is at variance with that law that warrants Slavery,”[109]—and of Jefferson, in that memorable utterance, prompted by Slavery, “I tremble for my country, when I reflect that God is just, that His justice cannot sleep forever.”[110] All these sayings, directly repellent to the allegation of the Chief Justice, have often been cited in public speech, and most of them appear in a work entitled “Slavery and Antislavery,” by that devoted Abolitionist, William Goodell, published several years before the opinion of the Chief Justice.

Forgetting laws, judicial decisions, history, and political literature, it was easy for the Chief Justice to forget how the religious sects of the country testified for the rights of the African, sometimes by individuals, and sometimes by corporate acts. Here the Quakers took the lead. As far back as 1688, a small body of German Quakers at Germantown, Pennsylvania, presented a protest to the Yearly Meeting against “buying, selling, and holding men in slavery,”[111] which was followed in 1696 by formal advice from this body that the members should “be careful not to encourage the bringing in of any more negroes, and that such that have negroes be careful of them.”[112] One of their number, George Keith, denounced Slavery with especial vigor, as “contrary to the religion of Christ, the rights of man, and sound reason and policy.”[113] At the beginning of the last century the Quakers of New England were agitated. In 1716, they sent forth a declaration from Nantucket, that “it is not agreeable to truth for Friends to purchase slaves and keep them term of life;”[114] and in 1730, Elihu Coleman, of Nantucket, wrote a tract in reprobation of Slavery as “anti-Christian,” and “very opposite both to Grace and Nature.”[115] In 1729, at Philadelphia, Ralph Sandiford exposed it in a pamphlet entitled “The Mystery of Iniquity”; and in 1737, Benjamin Lay gave to the world his work with the expressive title, “All Slave-Keepers, that keep the Innocent in Bondage, Apostates,”—and this was printed by Benjamin Franklin.[116] Then came the extraordinary labors of John Woolman, who, from 1746 to 1768, travelled through the Middle and Southern Colonies, an avowed Abolitionist, testifying against Slavery,—and of Anthony Benezet, who, by various writings, and by gratuitous instruction of negroes at an evening school, showed his sense of their common humanity. Meanwhile at their Yearly Meetings Slavery was condemned. In 1754, there was a recommendation “to advise and deal with such as engage” in the traffic, with the declared desire to guard against “promoting the bondage of such unhappy people.”[117] In 1776, it was declared “that the owners of slaves who refused to execute proper instruments for giving them their freedom were to be disowned.”[118] There are also reports of meetings,—in Rhode Island, in 1717, 1727, 1760, 1769, and thence, nearly every year, to 1787,—in New York, previous to 1759, and in 1767, 1771, 1772, 1774, 1775, 1776, 1777, 1781, 1782, 1784, 1785, 1787,—and in Virginia, in 1757, 1764, 1766, 1767, 1768, 1773, 1780, and thence annually, with but one intermission, to 1787,—where the rights of the African were recognized, and in most of them Slavery was condemned.[119] The meeting of 1782, in Rhode Island, spoke of “that iniquitous practice of holding or dealing with mankind as slaves.”[120] The meeting of 1776, in New York, refused “to employ or accept the services in the church, or receive the collections,” of those “who continue these poor people in bondage.”[121] The meeting of 1773, in Virginia, earnestly recommended manumissions, and quoted the words of the Prophet, “The people of the land have used oppression and exercised robbery.”[122] These are only illustrations of the extent to which the pretension of the Chief Justice was disowned.

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.

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]

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.