A Defence of Virginia. Robert Lewis Dabney
Parliament then by statute threw the trade open to all British subjects. The Parliament, by express law, made the property in slaves held in the colonies subject of action in English courts. The Solicitor-General, with Chancellor after Chancellor, decided that residence in England did not emancipate the slave upon his return to his colonial home. The General Court of Massachusetts enacted the same rule, as did the Burgesses of Virginia, again and again; and were never disallowed therein by the king. Even so late as 1827, fifty-five years after the Somersett case, Lord Stowell decided, in the case of the slave Grace, from Antigua, that on her return to the colony, her condition as a slave for life was fully revived.[56] And in the correctness of this decision, we find Mr. Justice Story concurring.[57]
The argument then is, that at the American Revolution all the territory claimed by the thirteen colonies was, by the law of the Empire, and of nations, slaveholding territory. The colonies, in assuming their independence, brought away the rights and institutions which they had inherited as colonial parts of that empire; and whatever prescriptive right was not expressly changed by law, was universally held to survive, as of course. Hence all the territory of the American Union was slave territory; and the only mode by which any part became non-slaveholding, was by the exercise of State sovereignty enacting a lex loci, which was only operative within the bounds of the State itself.
Third. The chief territory which the United States acquired between the Revolution and the Mexican war, was Louisiana. This vast region was gained by treaty from France in 1803. It was then a single province and government of the French Republick, and was, through all its extent, a slaveholding country. In the third article of the treaty for its purchase, between the United States and the First Consul, it was stipulated that until the ceded territory should be incorporated, as States, in the Union, all its citizens should be "in the mean time maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess." The settled doctrine of the courts of Louisiana has always been, that this guarantee covered all the citizens emigrating into any part of the territory before its erection into a State, as fully as those living in Louisiana in 1803.[58] Thus, the rights of slave owners in the whole of the Louisiana purchase were guaranteed to them by treaty, until such time as the part they inhabited became a sovereign State, and thus assumed plenary power over the subject. But, by Article 6th, § 2d, of the Constitution of the United States, all treaties made by the authority of the United States are declared to be the supreme law of the land. Thus the rights of the master in all this region were placed above the power of the legislature itself.
Fourth. The federal constitution recognized and protected property in slaves, in every way which was competent to a federative compact of this kind. The slaveholding States had representation for three-fifths of their slaves. The slaves were made subjects of direct taxation, as property. The constitution provided expressly for a fugitive slave law, which was soon passed by the Congress, and continued to be the law of the land until the termination of the government. By the constitution, property in slaves was created like any other property; and no ground can be found for the assertion that its rights were more restricted than rights in cattle or lands. But the fundamental idea of that instrument was the impartial equality of all the citizens before the law. Whatever authority Congress had over the common territories, was as trustee for all the citizens of the United States equally. Hence it seems obvious that this body was bound to recognize in all the citizens equal rights, in going into those territories with any species of property which they might hold by the laws of any State, or of Congress, and to protect them in those rights while the country was in a territorial condition.
Finally, these principles have been expressly decided by the highest constitutional authority in the land, as well as by the voice of the most enlightened founders of the government. When the mischievous contest concerning the admission of Missouri was rising in 1819, Mr. Madison declared, concerning the article of the constitution which conferred on Congress its powers over the territories, (Art. 4, § 3,) that "it cannot be well extended beyond a power over the territories as property, and the power to make provisions really needful or necessary for the government of settlers, until ripe for admission into the Union."[59] The Supreme Court of the United States, in the well-known case of Dred Scott, decided that Africans were not citizens of the United States in the meaning of the constitution;[60] that property in African slaves was on the same footing under that instrument with other legal property;[61] that the residence of a slave in a territory of the United States did not emancipate him, nor did his residence in a non-slaveholding State for a time, prevent the recurrence of his state of bondage, on his return to the State in which he had been a slave;[62] and that Congress had no power to use its authority to exclude slavery from any part of the territories.[63]
Thus the main proposition with which we set out is abundantly sustained by the history and legislation of the country. Three evasions from this conclusion have been attempted, of which the first is from the language of the Declaration of Independence, in which these famous words occur: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness," etc. The inference is, that the Declaration intended to imply that the slavery of the Africans was a natural wrong incapable of being legalized; and it is claimed that this document is of the organic force of constitutional law to the confederation which then asserted its independence. Both these suppositions are erroneous. As to the latter, it may be justly argued, that the Declaration of Independence was simply what it calls itself: a declaration, a justificatory statement addressed to the world without, and not an act of organic legislation ascertaining the rights of the citizens within. The evidence is, that it enacts nothing save the one point of the independence of the colonies. Neither the Confederation nor the new Union formed in 1787 ever based any legislation upon it, save as their acts involved the fact of independence. The constitution made no reference to it; did not ground itself upon it, and did not reënact it. Hence, let its meaning be what it may, it legislates nothing for or against slavery.
But it is too clear to be disputed, that the enslaved African race were not intended to be included, and formed no part of the people who asserted their rights in this Declaration. The evidence is, that if the men who framed it had intended to refer to African slavery, they would have completely stultified themselves. For the majority of them, and of the States which they represented, continued to hold Africans in bondage just as before. A few years after, the same men met in federal convention, and framed the late constitution of the United States; by which property in slaves was protected and perpetuated as before, and traffick in Africans was prolonged until 1808, and made subject of taxation like other merchandise. The States which were emancipating their own Africans, equally with those which retained them in bondage, retained their laws prohibiting the marriage of Africans with whites.[64] Connecticut, until 1796, prohibited free negroes from travelling beyond their township without a pass. New Hampshire, and Congress itself, precluded negroes from serving in the militia.[65] The Declaration of Independence was therefore intended by its framers to assert the liberties of civilized Americans and Englishmen, and not of African barbarians held in bondage. Whether their consistency therein can be defended, is a separate question, to which attention will be given in the proper place. But all publicists are agreed, that the meaning of a document is the document; and that this meaning is to be ascertained by the intentions of those who frame and adopt it.
The second objection to our conclusion is grounded upon the Ordinance of the Confederation, in 1787, by which slavery was prohibited in the North-western Territory ceded to the United States by Virginia. This magnificent domain, including the present States of Ohio, Indiana and Illinois, was conquered from the public enemy in the years 1778–9, by the Commonwealth of Virginia. She sent out her own troops, at her own charges, without either authority or assistance from the Confederation, then also engaged in a war with Great Britain, under her own commission to her heroick son, General George Rogers Clarke. Upon the conquest of the country, she disposed by her own State action of the prisoners of war captured, and annexed the territory to the State of Virginia, which then also included Kentucky. The other States, and the Confederation, uniformly recognized this region as legitimately a part of Virginia. But during and after the war, the States which owned no unsettled territory grew exceedingly