The Slavery Question Once More, BQR April, 1857

THE SLAVERY QUESTION ONCE MORE.
[From Brownson"s Quarterly Review for April, 1857.]
We have been told that our remarks on Slavery and the Incoming Administration gave great offence to some of our readers, and we have found ourselves denounced in a Virginia journal of note and influence as on the verge of blackrepublicanism. We are not surprised at this, for partisans can rarely understand the position of one who holds himself independent of party, and who assumes the right to judge all parties.
Our views on slavery itself were given in April, 1838,* and were such as to secure us the friendship of the late John C. Calhoun, and of several of the more eminent statesmen of the slave-holding states. We are not aware of having changed our views on that subject since. We have never professed to admire slavery, or to wish its continuance; we have uniformly expressed ourselves as in opposition to it, wherever it is an open question, whether it shall exist or not. Thus we say to the South, January, 1841, "Slavery we cannot advocate, for we can see no affinity between slavery and democracy. We shall undoubtedly speak out unquestioned, and unobstructed, in favor of universal freedom to universal man." "You must not think that we advocate slavery on principle, that we love the institution. There is not a Democrat north of Mason and Dixon's line that does not loathe it, and believe it a crime against humanity. We refrain from meddling with it, simply because it is a matter which concerns states of which we are not citizens, because we can reach it by no constitutional action, and because we believe liberty is more interested at present in preserving the constitution, in maintaining state rights,
* Slavery—Abolitionism, Brownson's Works, Vol. XV., pp. 45 et teq.
We have, ever since 1838, uniformly opposed,—no man more strenuously, whether efficiently or not,—the whole abolition movement, on legal, moral, economical, and political grounds. Touching the question of slavery the several states are, in relation to one another, independent sovereignties, and must be regarded as so many independent foreign nations. New York has the same right to take cognizance of slavery in South Carolina that she has to take cognizance of any domestic institution of France or Great Britain, and no more ; that is to say, no right at all. As a citizen of New York I am not responsible for the existence of slavery in any other state in the Union, and I cannot, further than the expression of my individual opinion, interfere with the relation existing between the master and his slave, without violating international law, striking at the mutual equality and independence of the states, and sapping the constitution of the Union. The whole abolition movement of the nonslaveholding states as it has been carried on for now nearly thirty years we regard and for nearly the whole of that time have regarded as immoral, illegal, and its abettors as punishable by our laws.
We deny, and always have denied, the right of congress to legislate on the subject. The fugitive-slave law is simply a law for executing a clause in the constitution, which is in the nature of an extradition clause, in a treaty between independent sovereigns. We always regarded the so-called "Missouri compromise" as unconstitutional. Slavery with us is purely a STATE institution, deriving from state sovereignty alone, and there is under our system no power to authorize or to abolish it, but the state itself, that is, the people in their state as distinguished from their federal capacity. The state may or may not, as it chooses, authorize slavery, forbid it, or abolish it, without leave asked or obtained from the Union, or from her sister states. Congress has, then, no power to say to the states on one side of a given parallel of latitude yon may, and on the other, yon shall not, hold slaves. The constitution gives it no such power either in respect of old states or new states. New York has been a slaveholding state since my recollection, and may become so again if she chooses. Congress has nothing to say on the subject, one way or the other. In the admission of new states, it has no right to say the state must come in with or without slaves. The state does not become a state by the act of admission, for it is admitted, and can be admitted, into the Union only as a state, and therefore must exist as a state before admission. When leave is given to a territory to form a state constitution for itself, and it has in accordance with the leave obtained formed its constitution, and organized its state government, it is a state, a free sovereign state, and till its admission, as independent of the Union, as though it were a foreign nation. If congress refuses to admit it, it does not fall back under the territorial government, and become Subject again to the Union, but remains a state outside of the Union, free and independent, with all the rights and capacities of a sovereign community. Congress then cannot dictate to the people of the territory the provisions of the constitution they adopt, and must treat them in relation to their constitution, precisely as it must treat the states already in the Union. It has then nothing to say in the formation of their constitution on the subject of slavery. When they have organized their state government, they have the right to apply for admission into the Union, and it is obligatory on congress to admit them, if they have adopted a state government republican in its form. This settles the question as to the Missouri compromise, and proves it to be unconstitutional.
The only case in which it can be pretended that congress may interfere with the slave question is in the organization of territorial governments; but it cannot even in this case interfere with it, because under our system slavery is purely a state question, and has no existence where there is no state. The federal government is a government of express powers, and among its express powers there is none which gives it authority to introduce or abolish, to authorize or prohibit slavery. Its powers in regard to territories not yet erected into states are restricted to the necessities of the case, and must be exercised in accordance with the general principles of law. It may enforce the natural law, and is bound to protect all the rights which exist under the common law; but it can go no further, except by special constitutional provision. It has no authority to create new rights or to derogate from existing rights. But as slavery exists neither by the common law nor by the natural law, congress cannot introduce it in a territory; and as slavery exists only by virtue of municipal law, it cannot enter legally into any territory while a territory. So in no case has congress or the Union any power over the question of slavery, and hence both the Missouri compromise and the Wilmot proviso are unconstitutional, and ought never to have been adopted. 
The South agree that congress has no power to legislate slavery into a territory, and the ground we took in our article is, that without the legislative action of congress slavery cannot legally go into any territory, while a territory. This ground we did not indeed take in 1847, in an article on Slavery and the Mexican War. We changed our ground in 1854, on being assured that the supreme court had decided that slavery is a local institution, existing only by virtue of positive law, -affect of which I was not aware in 1847. I am told the decision of the court does not go to the extent alleged. This may be so, but whether so or not is nothing to my present purpose. If the court has not so decided, the opinion is incontrovertible, and although the alleged decision was the occasion of my adopting it, it is not the authority on which I defend it. Slavery is, whether the supreme court has so decided or not, a local institution, rightfully existing only by virtue or municipal law. Under the law of nature, there are no slaves, for all men are created equal, and one man has no jus dominii over another. Hence all Americans maintain that power, in whose hands soever lodged, is a trust, and a trust to be exercised for the good of the governed, for whose benefit the trust is created. Neither the civil law nor the common law authorizes slavery, and every lawyer knows that all the presumptions of law are in the favor of freedom. There remains then no possible legal sanction of slavery but that of municipal law, which has no force out of the municipality. It exists with us, if it legally exists at all, by virtue of the local law of the state, and that law has and can have no extra-territorial jurisdiction. How then is it possible for slavery to have legal status in territory included within no state, and subject, aside from the law of congress, to no law but the law of nature?
We have been told that slavery exists in the Union by usage, and that the usage which obtained in all the colonies from the beginning authorizes it to go wherever it is not forbidden. But we deny that slavery exists in the Union by usage, for it does not exist in the Union at all. It exists in the states by usage, if you will, but not in the Union. Slavery is a state, not a federal institution. It was, we believe, introduced into the colonies without any positive law, and it continues to exist, as a matter of fact, in all the states that have not by positive law abolished or prohibited it. But the usage was that of distinct, and in relation to one another, independent colonies. The usage of one colony had, per se, no force in another, and though in fact it obtained in them all, it was never the common usage of the whole, but the particular usage of each. The usage in question may or may not legalize slavery in the states which have not abolished it, but as law it is confined to each state separately without extra-territorial force or vigor. It cannot legalize it in a territory not yet erected into a state, because territories have and can have no local usage. Usage itself, moreover, is not law, and is recognized by the courts as law, only because its long existence warrants the presumption that it has received the express or tacit sanction of the law-making power; and therefore no usage can have the force of law where there is no legislative authority competent to pass a law to the same effect. Give, therefore, to the usage or custom alleged all the force you can, since it is the usage or custom only of distinct colonies or distinct states, it can never authorize slavery, which does not exist by virtue of natural right or the jus gentium, out of the territorial jurisdiction of the particular state or colony. It ig simply in its nature a municipal usage, and of no force save within the municipality.
We are told, again, that slaves are property, and the Union is bound to recognize and protect slave property as much as any other species of property. Very true, where slave property exists, but not where it does not exist. In the states where slaves are property, the federal courts are bound to treat them as property, and cannot discriminate between them and other species of property ;"" but not therefore does it follow that it must treat them as property in the territories, where no local law makes them property.
The territory of the Union, not yet erected into states, belongs, we are further told, to all the states in common,
VOL. XVII-6
and as all the states are equal, the citizens of slaveholding states must have the same right to migrate to them and settle on them with their property, that the citizens of the other states have to migrate to them and settle on them with their property. Most certainly, with that which is property out of their own state or in the territory. No discrimination can be made between the citizens of one state and those of another. The citizen of South Carolina must be as free to settle in Nebraska, for instance, as the citizen of New York, and to carry with him every species of property that his New York brother can carry. The citizen of New York cannot carry with him his real estate, or as the French law terms it, his immovable property, though he may retain the title; neither can the South Carolinian carry his real estate with him, and we believe negroes are counted by the laws of his state, real, not personal property. He may sell them, and carry with him the proceeds, which is all the New Yorker can do with his real or immovable property. The prohibition to the South Carolinian to hold his people in Nebraska as property only places him and the New Yorker on a footing of equality. But, if the South Carolinian asks to carry his people with him and to hold them as property in Nebraska, he asks more than he concedes to his New York brother, for as his people are property only by virtue of the laws of South Carolina, he asks simply that the municipal laws of his state shall pro tanto at least, have extra-territorial force, and operate as law in Nebraska. What he really asks is, that the legislation of South Carolina shall extend by its own force over territory not within her jurisdiction, for by no other law than that of South Carolina are his people property. Why shall he have the right to extend over Nebraska the South Carolinian legislation which creates his slave property, any more than the New Yorker to extend over it the New York legislation which abolishes and prohibits such property?
It is alleged again, that if debarred from migrating with their slaves to the new territory, the citizens of the slaveholding states are deprived of their equal right in the common property of all the states. But not any more than the citizens of the non-slaveholding states would be deprived of theirs, were the privilege conceded, for the existence of slavery is as repugnant to the latter as its non-existence is to the former. The existence of slavery has shut out emigration' from the North to the rich lands of the South and Southwest, as effectually as the prohibition of slavery has shut out emigration from the South to the rich and fertile lands of the Northwest.
The mistake of so many of our own statesmen on this subject grows out of the assumption that the title to slave property rests on the same foundation as does any other species of property. We deny, and all along have denied, this assumption. The slaveholder's title to property in his people rests solely on municipal law, not on natural right, we dispute not its validity within the jurisdiction of the state enacting that law; but we deny it in toto out of that jurisdiction. The right of property is, indeed, anterior to civil society, and is a natural and divine right, but the right to property in human beings is only a municipal right. God gave the earth to the children of men; he made man the lord of the lower creation, and gave him dominion over the beasts of the field, the fowls of the air, and the fishes of the sea, for they were created for man. In them man has a natural right of property, which civil society may indeed define and regulate, but which it does not create, and which it is bound to recognize and protect. But God, as Pope Gregory the Great* has declared, never gave to man dominion over man, nor to one man the right to lord it over another. He has never created some men to be kings and others to be subjects, some to be masters and others to be slaves; but he has created all men equal, and therefore Pope Alexander III. asserts, that by nature all men are free. This is the teaching of Catholic doctors, and of all Christian expounders of the law of nature. It flows naturally and necessarily from the Christian doctrine of the unity of the race. Man has naturally, by the law of nature, no right of property in man, and one man has the right to the services of another only in consideration of benefits conferred, or a debt voluntarily contracted. Here then is a broad distinction between slave property and other species of property. Man has a natural right to property in his lands, his house, his sheep and cattle, and the products of his own skill and industry, and in the absence of municipal prohibition, and in so far as movable, he may carry them with him wherever he goes. But the case with slave property is different. Slaves being property only by virtue of municipal law, they cease to be property when transported out of the jurisdiction of the state which creates him a property in them.
 
Certainly, if the South Carolinian claims the right to transport his people to Nebraska, and to hold them there as property, he must claim to do it by virtue of some law. We ask him, by virtue of what law? The law of nature? No, for under that law all men are equal, and one man has no property in another. By virtue of the civil law, the "written reason" of continental Europe and parts of America? Xo, for that law proceeds on the principle that livery man is born free, and holds every man to be a free man till the contrary is proved. By virtue of the common law, the lex non scriptaoi England and of most of the states of the Union? No, because in this respect the common law and the civil law are coincident. By virtue of the laws of South Carolina? No, for the laws of South Carolina have no force beyond the territorial limits of South Carolina herself. By virtue of the territorial laws of Nebraska? No, for Nebraska, while a territory, has no original legislative power, and none at all, except what is conferred by congress, and therefore, of course, none which exceeds the legislative power of congress itself. But congress, the South Carolinian himself maintains, has no power to legislate on the subject. Will he tell us then, how in the absence of congressional legislation directly, or indirectly through the territorial legislation, authorizing slavery in Nebraska, he can claim to hold his people in that territory as property? Of course he cannot do it, and therefore we maintain that the non-intervention of congress in the slavery question necessarily excludes slavery from the territories so long as they remain under territorial governments, not indeed by depriving the citizens of the slaveholding states of rights which they possess, but by not creating for them rights where they never possessed them.
We take, it will be seen, in the whole course of our argument the southern doctrine of state rights, and of the powers of congress. We defend the southern doctrine of nonintervention, in opposition to the abolitionists and so-called Republicans. We are faithful to the principles we learned from Mr. Calhoun and the state-rights party, which has always been our party, so far as party we have had ; but we arrive, we grant, at a different conclusion from that insisted on by our masters. They held and hold that slavery may go wherever it is not forbidden by municipal law; we, that it can go only where authorized by municipal law, or municipal usage having the force of law. We are right, and they wrong, if, as we maintain, under the law of nature all men are free, and man has by natural law no jus dominii over man, as all Catholic morality teaches, as was declared by the American congress of 1770, and as is implied in our whole system of jurisprudence, and assumed as unquestioned by nearly the whole modern world. The negro is a man, and has all the natural rights and freedom of any other man. I cannot, as a Catholic, deny this, and am obliged to assert it as a man. The negro is free unless deprived of his freedom by municipal law, or by his own misuse of his freedom. That a man can forfeit his freedom by his offences nobody doubts; that the state may place some men in the ward of others, and give them a valid title to their bodily services, we do not question; but where neither of these conditions is present, we do and can recognize no slave property. How far the laws of Spain and France authorized slavery in the territory acquired from those two powers before it was erected into states, we shall not undertake to decide, but we do say, and this is our doctrine, that under our system, slavery can have no legal existence in any free territory, while that territory remains under a territorial government. Texas was annexed as a state, and slavery was legal in it by virtue of its own laws prior to its admission, and therefore, though a slave state, was legally admitted. There is very little territory now belonging to the Union likely to be affected one way or the other by our doctrine, and its only practical importance is, as it regards territory which may hereafter be acquired on our southern border.
It will be seen that we have thus far been discussing the constitutional and legal rights of slavery. Slavery is under our system purely a state institution, and strictly a state institution we wish to keep it. As a state institution, whatever may be our private opinion of it, we are bound to recognize, respect, and, when the occasion calls, defend it, as we are any other legitimate state institution. We oppose the so-called Republicans, not because they are opposed to the extension of the area of slavery, but because they claim for congress the power to prevent it by legislation. The power to legislate against implies the power to legislate for its extension, and the Republicans in reality claim for congress full jurisdiction of the slavery question in the territories. This we deny. We say congress has no jurisdiction in the case. Slavery is not a federal question. If, as the South contend, and as several of our statesmen have admitted, slavery is free to go where no municipal law prohibits it, we cannot deny that it is free to go into any territory of the Union not yet erected into a state. Congress has no authority to forbid it, and we ought to submit to its extension, as a less evil than the exercise of an unconstitutional power by the federal legislature. Whether slavery can or cannot legally exist in the territories, is a question for the federal courts, and if these courts decide against the ground we have taken, we shall submit. Meanwhile we must be permitted for the reasons we have alleged to believe that they will not and cannot so decide.
We have scouted so-called "squatter sovereignty," but we have not the least scruple in maintaining that the people of the territory in forming, by permission of congress, a state constitution, have the right, and that they only have the right, to say whether they will or will not authorize slavery. The people of a territory in meeting in convention and forming a state constitution, have all the powers of a free, independent sovereign people, and are competent to decide whether involuntary servitude shall or shall not be permitted, and we know under our American system no other power competent to decide that question. To them we wish to leave it, and to them the people of the Union should leave it. The northern Democrats, at the head of whom stands our new secretary of state, are wrong in their assertion of "squatter sovereignty," which is the extreme of radicalism, and, in principle, incompatible with the assertion of any legitimate government; the South are wrong» in our judgment, in asserting that slavery is free where no municipal law prohibits it. But we regard the abolitionists and free-soilers as still more dangerously wrong than either; for the doctrine of federal sovereignty and consolidation underlies all their proceedings. Their tendency is to centralize all power in the federal government, and make the states derive from the Union instead of the Union from the states. We know the tendency of the modern world is to centralize power, and to render the sovereign, whether monarchical, aristocratical, or democratical, absolute ; but we are old fogyish enough to oppose all absolute governments, and to contend for the. old doctrine of a limitation of the sovereign power, whatever its form. Democracy, as popularly understood and denned, is as fatal to freedom as autocracy, and perhaps practically even more so. There is no limitation of power where the limitation and the power have one and the same basis. If the states derive from the Union, they are no limit to the power of the Union, for they depend on it, and have no independent basis of their own. Were the Union dissolved, we should not, under the state-rights doctrine, be thrown into a state of complete anarchy, because each state would still exist, at least theoretically, as a complete political community, with all the rights and capacities of a free, independent and sovereign state. But on the abolitionist and free-soil doctrine, the dissolution of the Union would carry with it the dissolution of all government, and we should be thrown into anarchy even in the bosom of the states as well as of the federation. It is the consolidation tendencies of the so-called Republican party, rather than their anti-slavery doctrine, that renders it impossible for us to go with them. The evil that would result from their triumph would be greater than any evil likely to result from any probable extension of slavery, unless that extension be effected by the action of the federal government.
Our remarks in our last article were addressed mainly to the party, whether at the South or at the North, seeking either to extend slavery within the Union, or to build up a great southern slaveholding republic, and had. as was evident on their face, for their purpose to warn the incoming administration against throwing itself into the hands of that party, for should it do so it would be impossible for it to gain the support of the Union. Such is the temper of the people of the non-slaveholding states, that their suffrages cannot be obtained for a pro-slavery administration, or an administration controlled by the slave interest. We ventured to do this, because we had been so long identified with the opposition to abolitionism and free-soil ism, that we did not suppose any one would be likely to misconstrue our motives or views. We say of the whole anti-slavery movement to-day, what we said nineteen years ago, when we first discussed the question in its political bearings. We suffer a little humiliation, we admit, when we find that twenty years of steady devotion to the rights of the states, and of opposition on state-rights principles to the consolidation tendencies of the anti-slavery party, can have no weight in saving us from the suspicion of being a black-republican. Certainly we are no "nigger driver," but we are just as little of a "nigger worshipper." We are no advocates of slavery, but we are at the same time no abolitionists: we do not assent to the southern doctrine insisted upon in late years, that slavery is an excellent institution, but we acknowledge the right of every state in the Union to maintain or establish it, if such be its choice, and we will defend that right to the death against any interference with it by the Union. But we will go just as far against any extension or positive support of slavery by the action of the federal government. While we sustain in favor of slavery all the rights it has by virtue of positive law, we shall maintain with equal earnestness all the presumptions of the natural law in favor of freedom. This is our position, and if it displeases our friends at the North or our friends at the South, we cannot help it, and shall regard the fault as theirs, not as ours.
We take the liberty of referring our readers to an article we wrote in 1838, on Slavery and Abolitionism,* when the consolidation or centralizing tendency of the anti-slavery movement had hardly been alluded to. That article shows the ground on which we then placed our opposition to the movement, and from that ground we have not deviated to our knowledge since.
There may be some incidental opinions which we should not now accept without some important modifications, for we are not now a Protestant, as we were when we wrote it, and we recognize now, as we did not then, a power distinct from both the state and the individual competent to decide for the state and the individual, the morality of acts and institutions. But the substance, and all that has any bearing on the question before us, we accept. The reader will also see that the ground on which we oppose the abolition societies and the anti-slavery agitation, is a ground which compels us to oppose equally all our recent filibustering tendencies and movements. We recognize the right of religious propagandism by divinely commissioned missionaries, but we deny all propagandism on mere human authority against the wishes of the political sovereign. All human powers, however constituted, are in relation to one another independent and equal, and the law which binds the sovereign against intervention binds the citizen or subject,—a fact which our Anglo-Saxon race, through all stages of its historical existence, seems never to have duly considered. It may be called the filibustering race. The South as well as the North have favored the filibustering expeditions against Cuba, Mexico, and Central America, and in so doing have
* Brownson's Works, vol. xv., pp. 51-63.
given countenance to (he very principle on which the abolition societies defend their intermeddling with slavery in the southern states. It was filibustering coupled with proslavery tendencies, that we more especially condemned in our article on the incoming administration. If you accept the filibustering clauses of the Cincinnati platform, we cannot defend your opposition to the anti-slavery party, for you accept the very principle which justifies that party. The anti-slavery movement and the filibuster movement originate in the same tendency, and proceed from the same principle. If we are to defend slavery against the abolitionists on the principles of international law and state sovereignty, yon must not embarrass us by defending the filibustering movement, which denies international law, and the independence of states. There is nothing less justifiable in the formation at the North of a party to abolish slavery at the South, than in the expeditions which have sailed from our ports against Cuba and Central America. If you encourage the latter, how can we in your favor oppose the former? If the South encourages the filibusters with a view to the acquisition of new slave states,-what can we say against movements at the North for the abolition of slavery? If the South expects the North to respect international law in her favor, she must respect international law herself.
Thus far we had written before the decision of the supreme court in the Dred Scott case was rendered. We ave read an abstract of that decision as given us in the columns of the New York Herald, with great satisfaction in some respects and great surprise in others. It sustains us on all points except one, and the dissenting opinion of Judge McLean sustains us even on that; but the opinion of the majority, as given by Chief Justice Taney, on several incidental points, we cannot regard as worthy of the high source whence it emanates, and we are sure it will be very far from acceptable to a very large class of American citizens who are free from the slightest taint of abolitionism.
As to the precise question before the court the decision is final, and we have no disposition to criticise it, even if it were becoming in us to do so. We suppose the court is the judge of its own powers, and was competent to dismiss the case as not coming within its jurisdiction. We cannot understand on what ground it could claim jurisdiction in the case, since, if we understand it, it was purely a question for the state courts of Missouri, and surely these courts were competent to decide whether Dred Scott was or was not a slave under the laws of Missouri. Scott was a slave before he left the state, and we can understand no reason why his temporary residence at the United States military posts in Illinois or other free states, should have operated his freedom, so that on his return to Missouri he could not be legally held as a slave under her laws. His being employed at the United States military posts makes in our judgment some difference in the case, for while residing at them he was still constructively in Missouri. Had he chosen when in Illinois to leave his master, a question, however, might arise, whether he could have been recovered as a fugitive slave. But he having remained with his master and returned with him to Missouri, we think the court was quite right in still regarding him as a slave.
We are disposed to agree with the court, that a slave brought by his master into a free state with a view merely of a temporal sojourn there does not recover his freedom, so that if he returns to the state in which he was a slave he becomes there a free man. He is free only in the sense that so long as he resides in a free state he cannot be recovered under the fugitive-slave law. And do not think that New York can endow a person held as a slave in South Carolina with any rights of citizenship which will make him a free citizen everywhere in the Union. If this is the opinion of the court we do not see that it can be objected to. But the doctrine that persons of the negro race are not included in our political community and cannot be citizens of the United States, we are not yet prepared to accept. Negroes are men, and may be freemen, and the essential character of a citizen is that he is a freeman. Every freeman born within the jurisdiction of the United States, of parents not citizens or subjects of a foreign state, is a citizen in every state of the Union, whatever was the condition of his ancestors or the race from which he sprang. This is necessarily so because our institutions recognize among freemen no distinction of rank or race. There were free negroes in several, perhaps in all the states at the time of forming the Union, and they were an integral portion of that people of the states who formed the Union and for whom it was formed.
The negro being a man, a human soul, endowed by the law of nature with all the rights of a white man, he must in all things be held the equal of white men, except where the municipal law makes a distinction to his prejudice. Is there any clause in the constitution which excludes negroes from our political community, or that restricts that community to the white race? The court will not pretend it. Is there any clause which recognizes negroes, as such, as slaves, and declares them incapable of being freemen? Certainly not. How then can the court pretend that negroes born in the country and born free or freed by their masters or by the operations of law are not citizens? They may be, we need not tell the court, citizens, entitled to the protection of the Union, and capable of holding and transmitting real estate, and of suing and being sued in the courts, state and federal, without being electors.
New Hampshire, Massachusetts, and New York confer on negroes the right of suffrage, and make no political or legal distinction between them and white citizens. Suppose one of these negroes, whose ancestors were indeed imported from Africa as slaves, but have never themselves been slaves in other states, should emigrate to Kansas and seek to become a landholder there, could he not do it? Will the court say that he would be incapable of owning and transmitting landed estate, or maintaining actions in the federal courts of the territory? What rights has a white man in that territory that he would not have? How then say that negroes are not citizens of the United States? Mr. Chief Justice Taney rests the opinion of the court on the estimation in which the negro race was held at the time the Union was formed. They were regarded as no fit associates socially or politically for white men, as having no rights which white men were bound to respect, while nobody denied that they might be bought and sold as an ordinary article of merchandise. Suppose such was the fact, what has that to do with the question? Is it any where incorporated into the constitution of the Union, or recognized by the laws of the United States? Of course not. Then it cannot be cited against the rights of free negroes under the federal government.
But we dispute the fact. There can be no reasonable doubt that Mr. Jefferson and many others when they declared all men created equal intended the principle they asserted after Pope Alexander III., should apply in its fullest extent. Mr. Chief Justice Taney is a Catholic, and knows that from 1482 the popes have condemned, on pain of excommunication, the reduction of African negroes to slavery, and he knows that Mr. Jefferson, in 1 his draft of the declaration of independence, enumerated among the things which justified the colonies in severing the tie which bound them to Great Britain and in casting off their allegiance to the British crown, the fact that the crown had refused its assent to the laws prohibiting the importation of negroes from Africa to be held as slaves. There was too at the adoption of the federal constitution already rising throughout the civilized world a strong opinion against the justice of negro slavery. The right to buy and sell negroes, already slaves, as an ordinary article of merchandise, was very generally held, I grant, but the right to buy and sell free negroes, or to reduce free negroes to slavery, was denied by the Catholic Church, and was, I would fain believe, held by very few. There were then free negroes as well as now; if everybody regarded it lawful to reduce negroes as such to slavery, or looked upon them as having no rights which white men were bound to respect, what was the difference between a free negro and a negro slave? How can a man who has no rights which all others are bound to respect be said to be free?
Mr. Chief Justice Taney seems to us to proceed on the assumption that negroes are politically and legally a degraded race in the Union; but such is not the fact. They may be so in some of the states, but they are not so in the Union, nor indeed in all the states. We regret that in giving the opinion of the court the learned judge did not recollect what he is taught by his religion, namely, the unity of the race, that all men by the natural law are equal, and that negroes are men, and therefore as to their rights must be regarded as standing on the same footing with white men, where there is no positive or municipal law that degrades them. Here is what we dare maintain is the error of the court. We admit that negroes, but not negroes any more than white men, may be reduced by positive law to slavery, but planting ourselves on the constitution, and natural right as expounded by the church and the common law, we maintain, and will maintain in face of all civil courts, that where no such law reduces the negro to slavery, he is a free man, and in the absence of all municipal regulations to the contrary has equal rights with the white man. Neither race nor complexion disables a man under our federal system. That negroes may be citizens and possess equal rights with white men is proved by the fact that we have made them so in the territories acquired from France, Spain and Mexico, by the very treaties by winch we acquired those territories. The opinion of the court belongs to an epoch prior to the introduction of Christianity, and is more in accordance with the teaching of Aristotle than with that of the Gospel. We have no more disposition to interfere with slavery where it legally exists than have our southern friends, but we do protest against an opinion which places negroes as such not only but of the pale of our republic, but out of the pale of humanity. If opinion once went that length, it was the business of the court to brand it with its disapprobation, and not to recognize it as law. The court should lean to the side of the weak, and set its face against oppression. The negro race is, no doubt, inferior to the white race, but is that a reason why they should be enslaved, or why the court should join the stronger against the weaker?
The opinion of the court which allows the slaveholder to sojourn temporarily with his slaves in a free state, or to hold them in transitu through a free state, we think is just; but the opinion incidentally expressed, that a slaveholder may settle with his people and hold them as slaves in any territory of the United States, we cannot accept, for reasons assigned in the earlier part of this article. We have anticipated, and we think we have refuted, the reasoning of the court on this point. If we have not done it, Judge McLean lias, and effectually.
These are some of the exceptions we have felt bound to take to the opinion of the court, as it has been reported to us. Of course, we are aware there is no appeal from the supreme court, and its opinion must stand as law till it is set aside. Though we take exceptions to it, and believe it in several respects erroneous, we trust we shall not forget our duty as a loyal citizen. For ourselves personally, we believe liberty is more interested in the preservation of the Union than even in preventing the extension of slave territory, since, if the slave trade be not revived, the extension of slave territory involves no real extension of slavery. But we regret the decision, for we foresee that it will be impossible to prevent the anti-slavery agitation from being pushed on with new vigor, and with more danger than ever. The decision will be regarded as an extreme southern opinion, and the dissent from the majority by the ablest judges from the free states will deprive it of all moral force out of the slave states. We almost fear for the safety of the Union. Yet we believe Almighty God has great designs with regard to the American people, and we will trust in his good providence to carry us safely through the present crisis, the most dangerous that has as yet occurred in our history.
 

THE SLAVERY QUESTION ONCE MORE.

[From Brownson"s Quarterly Review for April, 1857.]

 

We have been told that our remarks on Slavery and the Incoming Administration gave great offence to some of our readers, and we have found ourselves denounced in a Virginia journal of note and influence as on the verge of blackrepublicanism. We are not surprised at this, for partisans can rarely understand the position of one who holds himself independent of party, and who assumes the right to judge all parties.

Our views on slavery itself were given in April, 1838,* and were such as to secure us the friendship of the late John C. Calhoun, and of several of the more eminent statesmen of the slave-holding states. We are not aware of having changed our views on that subject since. We have never professed to admire slavery, or to wish its continuance; we have uniformly expressed ourselves as in opposition to it, wherever it is an open question, whether it shall exist or not. Thus we say to the South, January, 1841, "Slavery we cannot advocate, for we can see no affinity between slavery and democracy. We shall undoubtedly speak out unquestioned, and unobstructed, in favor of universal freedom to universal man." "You must not think that we advocate slavery on principle, that we love the institution. There is not a Democrat north of Mason and Dixon's line that does not loathe it, and believe it a crime against humanity. We refrain from meddling with it, simply because it is a matter which concerns states of which we are not citizens, because we can reach it by no constitutional action, and because we believe liberty is more interested at present in preserving the constitution, in maintaining state rights,

* Slavery—Abolitionism, Brownson's Works, Vol. XV., pp. 45 et teq.

We have, ever since 1838, uniformly opposed,—no man more strenuously, whether efficiently or not,—the whole abolition movement, on legal, moral, economical, and political grounds. Touching the question of slavery the several states are, in relation to one another, independent sovereignties, and must be regarded as so many independent foreign nations. New York has the same right to take cognizance of slavery in South Carolina that she has to take cognizance of any domestic institution of France or Great Britain, and no more ; that is to say, no right at all. As a citizen of New York I am not responsible for the existence of slavery in any other state in the Union, and I cannot, further than the expression of my individual opinion, interfere with the relation existing between the master and his slave, without violating international law, striking at the mutual equality and independence of the states, and sapping the constitution of the Union. The whole abolition movement of the nonslaveholding states as it has been carried on for now nearly thirty years we regard and for nearly the whole of that time have regarded as immoral, illegal, and its abettors as punishable by our laws.

We deny, and always have denied, the right of congress to legislate on the subject. The fugitive-slave law is simply a law for executing a clause in the constitution, which is in the nature of an extradition clause, in a treaty between independent sovereigns. We always regarded the so-called "Missouri compromise" as unconstitutional. Slavery with us is purely a STATE institution, deriving from state sovereignty alone, and there is under our system no power to authorize or to abolish it, but the state itself, that is, the people in their state as distinguished from their federal capacity. The state may or may not, as it chooses, authorize slavery, forbid it, or abolish it, without leave asked or obtained from the Union, or from her sister states. Congress has, then, no power to say to the states on one side of a given parallel of latitude yon may, and on the other, yon shall not, hold slaves. The constitution gives it no such power either in respect of old states or new states. New York has been a slaveholding state since my recollection, and may become so again if she chooses. Congress has nothing to say on the subject, one way or the other. In the admission of new states, it has no right to say the state must come in with or without slaves. The state does not become a state by the act of admission, for it is admitted, and can be admitted, into the Union only as a state, and therefore must exist as a state before admission. When leave is given to a territory to form a state constitution for itself, and it has in accordance with the leave obtained formed its constitution, and organized its state government, it is a state, a free sovereign state, and till its admission, as independent of the Union, as though it were a foreign nation. If congress refuses to admit it, it does not fall back under the territorial government, and become Subject again to the Union, but remains a state outside of the Union, free and independent, with all the rights and capacities of a sovereign community. Congress then cannot dictate to the people of the territory the provisions of the constitution they adopt, and must treat them in relation to their constitution, precisely as it must treat the states already in the Union. It has then nothing to say in the formation of their constitution on the subject of slavery. When they have organized their state government, they have the right to apply for admission into the Union, and it is obligatory on congress to admit them, if they have adopted a state government republican in its form. This settles the question as to the Missouri compromise, and proves it to be unconstitutional.

The only case in which it can be pretended that congress may interfere with the slave question is in the organization of territorial governments; but it cannot even in this case interfere with it, because under our system slavery is purely a state question, and has no existence where there is no state. The federal government is a government of express powers, and among its express powers there is none which gives it authority to introduce or abolish, to authorize or prohibit slavery. Its powers in regard to territories not yet erected into states are restricted to the necessities of the case, and must be exercised in accordance with the general principles of law. It may enforce the natural law, and is bound to protect all the rights which exist under the common law; but it can go no further, except by special constitutional provision. It has no authority to create new rights or to derogate from existing rights. But as slavery exists neither by the common law nor by the natural law, congress cannot introduce it in a territory; and as slavery exists only by virtue of municipal law, it cannot enter legally into any territory while a territory. So in no case has congress or the Union any power over the question of slavery, and hence both the Missouri compromise and the Wilmot proviso are unconstitutional, and ought never to have been adopted. 

The South agree that congress has no power to legislate slavery into a territory, and the ground we took in our article is, that without the legislative action of congress slavery cannot legally go into any territory, while a territory. This ground we did not indeed take in 1847, in an article on Slavery and the Mexican War. We changed our ground in 1854, on being assured that the supreme court had decided that slavery is a local institution, existing only by virtue of positive law, -affect of which I was not aware in 1847. I am told the decision of the court does not go to the extent alleged. This may be so, but whether so or not is nothing to my present purpose. If the court has not so decided, the opinion is incontrovertible, and although the alleged decision was the occasion of my adopting it, it is not the authority on which I defend it. Slavery is, whether the supreme court has so decided or not, a local institution, rightfully existing only by virtue or municipal law. Under the law of nature, there are no slaves, for all men are created equal, and one man has no jus dominii over another. Hence all Americans maintain that power, in whose hands soever lodged, is a trust, and a trust to be exercised for the good of the governed, for whose benefit the trust is created. Neither the civil law nor the common law authorizes slavery, and every lawyer knows that all the presumptions of law are in the favor of freedom. There remains then no possible legal sanction of slavery but that of municipal law, which has no force out of the municipality. It exists with us, if it legally exists at all, by virtue of the local law of the state, and that law has and can have no extra-territorial jurisdiction. How then is it possible for slavery to have legal status in territory included within no state, and subject, aside from the law of congress, to no law but the law of nature?

We have been told that slavery exists in the Union by usage, and that the usage which obtained in all the colonies from the beginning authorizes it to go wherever it is not forbidden. But we deny that slavery exists in the Union by usage, for it does not exist in the Union at all. It exists in the states by usage, if you will, but not in the Union. Slavery is a state, not a federal institution. It was, we believe, introduced into the colonies without any positive law, and it continues to exist, as a matter of fact, in all the states that have not by positive law abolished or prohibited it. But the usage was that of distinct, and in relation to one another, independent colonies. The usage of one colony had, per se, no force in another, and though in fact it obtained in them all, it was never the common usage of the whole, but the particular usage of each. The usage in question may or may not legalize slavery in the states which have not abolished it, but as law it is confined to each state separately without extra-territorial force or vigor. It cannot legalize it in a territory not yet erected into a state, because territories have and can have no local usage. Usage itself, moreover, is not law, and is recognized by the courts as law, only because its long existence warrants the presumption that it has received the express or tacit sanction of the law-making power; and therefore no usage can have the force of law where there is no legislative authority competent to pass a law to the same effect. Give, therefore, to the usage or custom alleged all the force you can, since it is the usage or custom only of distinct colonies or distinct states, it can never authorize slavery, which does not exist by virtue of natural right or the jus gentium, out of the territorial jurisdiction of the particular state or colony. It ig simply in its nature a municipal usage, and of no force save within the municipality.

We are told, again, that slaves are property, and the Union is bound to recognize and protect slave property as much as any other species of property. Very true, where slave property exists, but not where it does not exist. In the states where slaves are property, the federal courts are bound to treat them as property, and cannot discriminate between them and other species of property ;"" but not therefore does it follow that it must treat them as property in the territories, where no local law makes them property.

The territory of the Union, not yet erected into states, belongs, we are further told, to all the states in common,

VOL. XVII-6

and as all the states are equal, the citizens of slaveholding states must have the same right to migrate to them and settle on them with their property, that the citizens of the other states have to migrate to them and settle on them with their property. Most certainly, with that which is property out of their own state or in the territory. No discrimination can be made between the citizens of one state and those of another. The citizen of South Carolina must be as free to settle in Nebraska, for instance, as the citizen of New York, and to carry with him every species of property that his New York brother can carry. The citizen of New York cannot carry with him his real estate, or as the French law terms it, his immovable property, though he may retain the title; neither can the South Carolinian carry his real estate with him, and we believe negroes are counted by the laws of his state, real, not personal property. He may sell them, and carry with him the proceeds, which is all the New Yorker can do with his real or immovable property. The prohibition to the South Carolinian to hold his people in Nebraska as property only places him and the New Yorker on a footing of equality. But, if the South Carolinian asks to carry his people with him and to hold them as property in Nebraska, he asks more than he concedes to his New York brother, for as his people are property only by virtue of the laws of South Carolina, he asks simply that the municipal laws of his state shall pro tanto at least, have extra-territorial force, and operate as law in Nebraska. What he really asks is, that the legislation of South Carolina shall extend by its own force over territory not within her jurisdiction, for by no other law than that of South Carolina are his people property. Why shall he have the right to extend over Nebraska the South Carolinian legislation which creates his slave property, any more than the New Yorker to extend over it the New York legislation which abolishes and prohibits such property?

It is alleged again, that if debarred from migrating with their slaves to the new territory, the citizens of the slaveholding states are deprived of their equal right in the common property of all the states. But not any more than the citizens of the non-slaveholding states would be deprived of theirs, were the privilege conceded, for the existence of slavery is as repugnant to the latter as its non-existence is to the former. The existence of slavery has shut out emigration' from the North to the rich lands of the South and Southwest, as effectually as the prohibition of slavery has shut out emigration from the South to the rich and fertile lands of the Northwest.

The mistake of so many of our own statesmen on this subject grows out of the assumption that the title to slave property rests on the same foundation as does any other species of property. We deny, and all along have denied, this assumption. The slaveholder's title to property in his people rests solely on municipal law, not on natural right, we dispute not its validity within the jurisdiction of the state enacting that law; but we deny it in toto out of that jurisdiction. The right of property is, indeed, anterior to civil society, and is a natural and divine right, but the right to property in human beings is only a municipal right. God gave the earth to the children of men; he made man the lord of the lower creation, and gave him dominion over the beasts of the field, the fowls of the air, and the fishes of the sea, for they were created for man. In them man has a natural right of property, which civil society may indeed define and regulate, but which it does not create, and which it is bound to recognize and protect. But God, as Pope Gregory the Great* has declared, never gave to man dominion over man, nor to one man the right to lord it over another. He has never created some men to be kings and others to be subjects, some to be masters and others to be slaves; but he has created all men equal, and therefore Pope Alexander III. asserts, that by nature all men are free. This is the teaching of Catholic doctors, and of all Christian expounders of the law of nature. It flows naturally and necessarily from the Christian doctrine of the unity of the race. Man has naturally, by the law of nature, no right of property in man, and one man has the right to the services of another only in consideration of benefits conferred, or a debt voluntarily contracted. Here then is a broad distinction between slave property and other species of property. Man has a natural right to property in his lands, his house, his sheep and cattle, and the products of his own skill and industry, and in the absence of municipal prohibition, and in so far as movable, he may carry them with him wherever he goes. But the case with slave property is different. Slaves being property only by virtue of municipal law, they cease to be property when transported out of the jurisdiction of the state which creates him a property in them.

 

Certainly, if the South Carolinian claims the right to transport his people to Nebraska, and to hold them there as property, he must claim to do it by virtue of some law. We ask him, by virtue of what law? The law of nature? No, for under that law all men are equal, and one man has no property in another. By virtue of the civil law, the "written reason" of continental Europe and parts of America? Xo, for that law proceeds on the principle that livery man is born free, and holds every man to be a free man till the contrary is proved. By virtue of the common law, the lex non scriptaoi England and of most of the states of the Union? No, because in this respect the common law and the civil law are coincident. By virtue of the laws of South Carolina? No, for the laws of South Carolina have no force beyond the territorial limits of South Carolina herself. By virtue of the territorial laws of Nebraska? No, for Nebraska, while a territory, has no original legislative power, and none at all, except what is conferred by congress, and therefore, of course, none which exceeds the legislative power of congress itself. But congress, the South Carolinian himself maintains, has no power to legislate on the subject. Will he tell us then, how in the absence of congressional legislation directly, or indirectly through the territorial legislation, authorizing slavery in Nebraska, he can claim to hold his people in that territory as property? Of course he cannot do it, and therefore we maintain that the non-intervention of congress in the slavery question necessarily excludes slavery from the territories so long as they remain under territorial governments, not indeed by depriving the citizens of the slaveholding states of rights which they possess, but by not creating for them rights where they never possessed them.

We take, it will be seen, in the whole course of our argument the southern doctrine of state rights, and of the powers of congress. We defend the southern doctrine of nonintervention, in opposition to the abolitionists and so-called Republicans. We are faithful to the principles we learned from Mr. Calhoun and the state-rights party, which has always been our party, so far as party we have had ; but we arrive, we grant, at a different conclusion from that insisted on by our masters. They held and hold that slavery may go wherever it is not forbidden by municipal law; we, that it can go only where authorized by municipal law, or municipal usage having the force of law. We are right, and they wrong, if, as we maintain, under the law of nature all men are free, and man has by natural law no jus dominii over man, as all Catholic morality teaches, as was declared by the American congress of 1770, and as is implied in our whole system of jurisprudence, and assumed as unquestioned by nearly the whole modern world. The negro is a man, and has all the natural rights and freedom of any other man. I cannot, as a Catholic, deny this, and am obliged to assert it as a man. The negro is free unless deprived of his freedom by municipal law, or by his own misuse of his freedom. That a man can forfeit his freedom by his offences nobody doubts; that the state may place some men in the ward of others, and give them a valid title to their bodily services, we do not question; but where neither of these conditions is present, we do and can recognize no slave property. How far the laws of Spain and France authorized slavery in the territory acquired from those two powers before it was erected into states, we shall not undertake to decide, but we do say, and this is our doctrine, that under our system, slavery can have no legal existence in any free territory, while that territory remains under a territorial government. Texas was annexed as a state, and slavery was legal in it by virtue of its own laws prior to its admission, and therefore, though a slave state, was legally admitted. There is very little territory now belonging to the Union likely to be affected one way or the other by our doctrine, and its only practical importance is, as it regards territory which may hereafter be acquired on our southern border.

It will be seen that we have thus far been discussing the constitutional and legal rights of slavery. Slavery is under our system purely a state institution, and strictly a state institution we wish to keep it. As a state institution, whatever may be our private opinion of it, we are bound to recognize, respect, and, when the occasion calls, defend it, as we are any other legitimate state institution. We oppose the so-called Republicans, not because they are opposed to the extension of the area of slavery, but because they claim for congress the power to prevent it by legislation. The power to legislate against implies the power to legislate for its extension, and the Republicans in reality claim for congress full jurisdiction of the slavery question in the territories. This we deny. We say congress has no jurisdiction in the case. Slavery is not a federal question. If, as the South contend, and as several of our statesmen have admitted, slavery is free to go where no municipal law prohibits it, we cannot deny that it is free to go into any territory of the Union not yet erected into a state. Congress has no authority to forbid it, and we ought to submit to its extension, as a less evil than the exercise of an unconstitutional power by the federal legislature. Whether slavery can or cannot legally exist in the territories, is a question for the federal courts, and if these courts decide against the ground we have taken, we shall submit. Meanwhile we must be permitted for the reasons we have alleged to believe that they will not and cannot so decide.

We have scouted so-called "squatter sovereignty," but we have not the least scruple in maintaining that the people of the territory in forming, by permission of congress, a state constitution, have the right, and that they only have the right, to say whether they will or will not authorize slavery. The people of a territory in meeting in convention and forming a state constitution, have all the powers of a free, independent sovereign people, and are competent to decide whether involuntary servitude shall or shall not be permitted, and we know under our American system no other power competent to decide that question. To them we wish to leave it, and to them the people of the Union should leave it. The northern Democrats, at the head of whom stands our new secretary of state, are wrong in their assertion of "squatter sovereignty," which is the extreme of radicalism, and, in principle, incompatible with the assertion of any legitimate government; the South are wrong» in our judgment, in asserting that slavery is free where no municipal law prohibits it. But we regard the abolitionists and free-soilers as still more dangerously wrong than either; for the doctrine of federal sovereignty and consolidation underlies all their proceedings. Their tendency is to centralize all power in the federal government, and make the states derive from the Union instead of the Union from the states. We know the tendency of the modern world is to centralize power, and to render the sovereign, whether monarchical, aristocratical, or democratical, absolute ; but we are old fogyish enough to oppose all absolute governments, and to contend for the. old doctrine of a limitation of the sovereign power, whatever its form. Democracy, as popularly understood and denned, is as fatal to freedom as autocracy, and perhaps practically even more so. There is no limitation of power where the limitation and the power have one and the same basis. If the states derive from the Union, they are no limit to the power of the Union, for they depend on it, and have no independent basis of their own. Were the Union dissolved, we should not, under the state-rights doctrine, be thrown into a state of complete anarchy, because each state would still exist, at least theoretically, as a complete political community, with all the rights and capacities of a free, independent and sovereign state. But on the abolitionist and free-soil doctrine, the dissolution of the Union would carry with it the dissolution of all government, and we should be thrown into anarchy even in the bosom of the states as well as of the federation. It is the consolidation tendencies of the so-called Republican party, rather than their anti-slavery doctrine, that renders it impossible for us to go with them. The evil that would result from their triumph would be greater than any evil likely to result from any probable extension of slavery, unless that extension be effected by the action of the federal government.

Our remarks in our last article were addressed mainly to the party, whether at the South or at the North, seeking either to extend slavery within the Union, or to build up a great southern slaveholding republic, and had. as was evident on their face, for their purpose to warn the incoming administration against throwing itself into the hands of that party, for should it do so it would be impossible for it to gain the support of the Union. Such is the temper of the people of the non-slaveholding states, that their suffrages cannot be obtained for a pro-slavery administration, or an administration controlled by the slave interest. We ventured to do this, because we had been so long identified with the opposition to abolitionism and free-soil ism, that we did not suppose any one would be likely to misconstrue our motives or views. We say of the whole anti-slavery movement to-day, what we said nineteen years ago, when we first discussed the question in its political bearings. We suffer a little humiliation, we admit, when we find that twenty years of steady devotion to the rights of the states, and of opposition on state-rights principles to the consolidation tendencies of the anti-slavery party, can have no weight in saving us from the suspicion of being a black-republican. Certainly we are no "nigger driver," but we are just as little of a "nigger worshipper." We are no advocates of slavery, but we are at the same time no abolitionists: we do not assent to the southern doctrine insisted upon in late years, that slavery is an excellent institution, but we acknowledge the right of every state in the Union to maintain or establish it, if such be its choice, and we will defend that right to the death against any interference with it by the Union. But we will go just as far against any extension or positive support of slavery by the action of the federal government. While we sustain in favor of slavery all the rights it has by virtue of positive law, we shall maintain with equal earnestness all the presumptions of the natural law in favor of freedom. This is our position, and if it displeases our friends at the North or our friends at the South, we cannot help it, and shall regard the fault as theirs, not as ours.

We take the liberty of referring our readers to an article we wrote in 1838, on Slavery and Abolitionism,* when the consolidation or centralizing tendency of the anti-slavery movement had hardly been alluded to. That article shows the ground on which we then placed our opposition to the movement, and from that ground we have not deviated to our knowledge since.

There may be some incidental opinions which we should not now accept without some important modifications, for we are not now a Protestant, as we were when we wrote it, and we recognize now, as we did not then, a power distinct from both the state and the individual competent to decide for the state and the individual, the morality of acts and institutions. But the substance, and all that has any bearing on the question before us, we accept. The reader will also see that the ground on which we oppose the abolition societies and the anti-slavery agitation, is a ground which compels us to oppose equally all our recent filibustering tendencies and movements. We recognize the right of religious propagandism by divinely commissioned missionaries, but we deny all propagandism on mere human authority against the wishes of the political sovereign. All human powers, however constituted, are in relation to one another independent and equal, and the law which binds the sovereign against intervention binds the citizen or subject,—a fact which our Anglo-Saxon race, through all stages of its historical existence, seems never to have duly considered. It may be called the filibustering race. The South as well as the North have favored the filibustering expeditions against Cuba, Mexico, and Central America, and in so doing have

* Brownson's Works, vol. xv., pp. 51-63.

given countenance to (he very principle on which the abolition societies defend their intermeddling with slavery in the southern states. It was filibustering coupled with proslavery tendencies, that we more especially condemned in our article on the incoming administration. If you accept the filibustering clauses of the Cincinnati platform, we cannot defend your opposition to the anti-slavery party, for you accept the very principle which justifies that party. The anti-slavery movement and the filibuster movement originate in the same tendency, and proceed from the same principle. If we are to defend slavery against the abolitionists on the principles of international law and state sovereignty, yon must not embarrass us by defending the filibustering movement, which denies international law, and the independence of states. There is nothing less justifiable in the formation at the North of a party to abolish slavery at the South, than in the expeditions which have sailed from our ports against Cuba and Central America. If you encourage the latter, how can we in your favor oppose the former? If the South encourages the filibusters with a view to the acquisition of new slave states,-what can we say against movements at the North for the abolition of slavery? If the South expects the North to respect international law in her favor, she must respect international law herself.

Thus far we had written before the decision of the supreme court in the Dred Scott case was rendered. We ave read an abstract of that decision as given us in the columns of the New York Herald, with great satisfaction in some respects and great surprise in others. It sustains us on all points except one, and the dissenting opinion of Judge McLean sustains us even on that; but the opinion of the majority, as given by Chief Justice Taney, on several incidental points, we cannot regard as worthy of the high source whence it emanates, and we are sure it will be very far from acceptable to a very large class of American citizens who are free from the slightest taint of abolitionism.

As to the precise question before the court the decision is final, and we have no disposition to criticise it, even if it were becoming in us to do so. We suppose the court is the judge of its own powers, and was competent to dismiss the case as not coming within its jurisdiction. We cannot understand on what ground it could claim jurisdiction in the case, since, if we understand it, it was purely a question for the state courts of Missouri, and surely these courts were competent to decide whether Dred Scott was or was not a slave under the laws of Missouri. Scott was a slave before he left the state, and we can understand no reason why his temporary residence at the United States military posts in Illinois or other free states, should have operated his freedom, so that on his return to Missouri he could not be legally held as a slave under her laws. His being employed at the United States military posts makes in our judgment some difference in the case, for while residing at them he was still constructively in Missouri. Had he chosen when in Illinois to leave his master, a question, however, might arise, whether he could have been recovered as a fugitive slave. But he having remained with his master and returned with him to Missouri, we think the court was quite right in still regarding him as a slave.

We are disposed to agree with the court, that a slave brought by his master into a free state with a view merely of a temporal sojourn there does not recover his freedom, so that if he returns to the state in which he was a slave he becomes there a free man. He is free only in the sense that so long as he resides in a free state he cannot be recovered under the fugitive-slave law. And do not think that New York can endow a person held as a slave in South Carolina with any rights of citizenship which will make him a free citizen everywhere in the Union. If this is the opinion of the court we do not see that it can be objected to. But the doctrine that persons of the negro race are not included in our political community and cannot be citizens of the United States, we are not yet prepared to accept. Negroes are men, and may be freemen, and the essential character of a citizen is that he is a freeman. Every freeman born within the jurisdiction of the United States, of parents not citizens or subjects of a foreign state, is a citizen in every state of the Union, whatever was the condition of his ancestors or the race from which he sprang. This is necessarily so because our institutions recognize among freemen no distinction of rank or race. There were free negroes in several, perhaps in all the states at the time of forming the Union, and they were an integral portion of that people of the states who formed the Union and for whom it was formed.

The negro being a man, a human soul, endowed by the law of nature with all the rights of a white man, he must in all things be held the equal of white men, except where the municipal law makes a distinction to his prejudice. Is there any clause in the constitution which excludes negroes from our political community, or that restricts that community to the white race? The court will not pretend it. Is there any clause which recognizes negroes, as such, as slaves, and declares them incapable of being freemen? Certainly not. How then can the court pretend that negroes born in the country and born free or freed by their masters or by the operations of law are not citizens? They may be, we need not tell the court, citizens, entitled to the protection of the Union, and capable of holding and transmitting real estate, and of suing and being sued in the courts, state and federal, without being electors.

New Hampshire, Massachusetts, and New York confer on negroes the right of suffrage, and make no political or legal distinction between them and white citizens. Suppose one of these negroes, whose ancestors were indeed imported from Africa as slaves, but have never themselves been slaves in other states, should emigrate to Kansas and seek to become a landholder there, could he not do it? Will the court say that he would be incapable of owning and transmitting landed estate, or maintaining actions in the federal courts of the territory? What rights has a white man in that territory that he would not have? How then say that negroes are not citizens of the United States? Mr. Chief Justice Taney rests the opinion of the court on the estimation in which the negro race was held at the time the Union was formed. They were regarded as no fit associates socially or politically for white men, as having no rights which white men were bound to respect, while nobody denied that they might be bought and sold as an ordinary article of merchandise. Suppose such was the fact, what has that to do with the question? Is it any where incorporated into the constitution of the Union, or recognized by the laws of the United States? Of course not. Then it cannot be cited against the rights of free negroes under the federal government.

But we dispute the fact. There can be no reasonable doubt that Mr. Jefferson and many others when they declared all men created equal intended the principle they asserted after Pope Alexander III., should apply in its fullest extent. Mr. Chief Justice Taney is a Catholic, and knows that from 1482 the popes have condemned, on pain of excommunication, the reduction of African negroes to slavery, and he knows that Mr. Jefferson, in 1 his draft of the declaration of independence, enumerated among the things which justified the colonies in severing the tie which bound them to Great Britain and in casting off their allegiance to the British crown, the fact that the crown had refused its assent to the laws prohibiting the importation of negroes from Africa to be held as slaves. There was too at the adoption of the federal constitution already rising throughout the civilized world a strong opinion against the justice of negro slavery. The right to buy and sell negroes, already slaves, as an ordinary article of merchandise, was very generally held, I grant, but the right to buy and sell free negroes, or to reduce free negroes to slavery, was denied by the Catholic Church, and was, I would fain believe, held by very few. There were then free negroes as well as now; if everybody regarded it lawful to reduce negroes as such to slavery, or looked upon them as having no rights which white men were bound to respect, what was the difference between a free negro and a negro slave? How can a man who has no rights which all others are bound to respect be said to be free?

Mr. Chief Justice Taney seems to us to proceed on the assumption that negroes are politically and legally a degraded race in the Union; but such is not the fact. They may be so in some of the states, but they are not so in the Union, nor indeed in all the states. We regret that in giving the opinion of the court the learned judge did not recollect what he is taught by his religion, namely, the unity of the race, that all men by the natural law are equal, and that negroes are men, and therefore as to their rights must be regarded as standing on the same footing with white men, where there is no positive or municipal law that degrades them. Here is what we dare maintain is the error of the court. We admit that negroes, but not negroes any more than white men, may be reduced by positive law to slavery, but planting ourselves on the constitution, and natural right as expounded by the church and the common law, we maintain, and will maintain in face of all civil courts, that where no such law reduces the negro to slavery, he is a free man, and in the absence of all municipal regulations to the contrary has equal rights with the white man. Neither race nor complexion disables a man under our federal system. That negroes may be citizens and possess equal rights with white men is proved by the fact that we have made them so in the territories acquired from France, Spain and Mexico, by the very treaties by winch we acquired those territories. The opinion of the court belongs to an epoch prior to the introduction of Christianity, and is more in accordance with the teaching of Aristotle than with that of the Gospel. We have no more disposition to interfere with slavery where it legally exists than have our southern friends, but we do protest against an opinion which places negroes as such not only but of the pale of our republic, but out of the pale of humanity. If opinion once went that length, it was the business of the court to brand it with its disapprobation, and not to recognize it as law. The court should lean to the side of the weak, and set its face against oppression. The negro race is, no doubt, inferior to the white race, but is that a reason why they should be enslaved, or why the court should join the stronger against the weaker?

The opinion of the court which allows the slaveholder to sojourn temporarily with his slaves in a free state, or to hold them in transitu through a free state, we think is just; but the opinion incidentally expressed, that a slaveholder may settle with his people and hold them as slaves in any territory of the United States, we cannot accept, for reasons assigned in the earlier part of this article. We have anticipated, and we think we have refuted, the reasoning of the court on this point. If we have not done it, Judge McLean lias, and effectually.

These are some of the exceptions we have felt bound to take to the opinion of the court, as it has been reported to us. Of course, we are aware there is no appeal from the supreme court, and its opinion must stand as law till it is set aside. Though we take exceptions to it, and believe it in several respects erroneous, we trust we shall not forget our duty as a loyal citizen. For ourselves personally, we believe liberty is more interested in the preservation of the Union than even in preventing the extension of slave territory, since, if the slave trade be not revived, the extension of slave territory involves no real extension of slavery. But we regret the decision, for we foresee that it will be impossible to prevent the anti-slavery agitation from being pushed on with new vigor, and with more danger than ever. The decision will be regarded as an extreme southern opinion, and the dissent from the majority by the ablest judges from the free states will deprive it of all moral force out of the slave states. We almost fear for the safety of the Union. Yet we believe Almighty God has great designs with regard to the American people, and we will trust in his good providence to carry us safely through the present crisis, the most dangerous that has as yet occurred in our history.