CONGRESS, U. S. 



341 



Most certainly. The Supreme Court have de- 

 cided this principle again and again. It is true 

 that where a nation, either by its positive enact- 

 ments or by its treaty stipulations, proscribes 

 the slave trade, it is not lawful for the subjects 

 or people of that State o'r nation to enter into 

 that trade ; but that constitutes the exception. 

 This case just as explicitly and as undeniably 

 establishes the position that if a single nation 

 upon earth stands out, and fails or refuses by 

 its legislation or by its treaty engagements to 

 proscribe the slave trade, the slave trade still 

 exists in relation to that nation as a legitimate 

 traffic. So much for the decision in the case 

 of the Antelope. 



Now, sir, I will read another authority, 

 and it is the authority of the judge dwelt upon 

 with so much pleasure and high approval by 

 the honorable Senator from Massachusetts (Mr. 

 Sumner) the other day Judge McLean. In the 

 case of Henry Miller vs. George McQuerry (5th 

 McLean's Reports, p. 472), he said : 



Xo proof, it is contended, has been offered to show- 

 that Kentucky is a State in which slavery is authorized 

 by law. And" a discussion in the Senate of the United 

 States is referred to, in which certain Senators declared 

 there was no law in the South expressly establishing 

 slavery. It is with regret that I hear this argument 

 relied on in this case. It was used by gentlemen of 

 the South to justify the introduction of slavery into our 

 Territories without the authority of law. In Groves i-s. 

 Slaughter, a Mississippi case, reported in 15 Peters's 

 Reports, 450, the Supreme Court of the United States 

 declared that slavery was local, and that it could not 

 exist without the authority of law ; that it was a muni- 

 cipal regulation. 



"I observe that gentlemen smile at this quo- 

 tation. Let them wait a moment and they will 

 see that it is explained, and it is shown that the 

 position here quoted is not the true position. 

 Slavery is not a municipal regulation, and the 

 learned judge shows it in this very opinion, as 

 you will see presently. "What is a municipal 

 regulation ? It is a regulation that is made by 

 local, civil law. Here is the slave trade, not 

 founded, not created, not having its origin or 

 sanction in local law at all, but by the univer- 

 sal custom and usages of the civilized world, as 

 decided in the case of the Antelope, and as this 

 learned judge himself recognizes : 



Whether this law was founded upon usage, or express 

 enactment, is of no importance. Usage of long contin- 

 uance, so long that the memory of man runneth not to 

 the contrary, has the force of law. It arises from long- 

 recognized rights, counterveued by no legislative ac- 

 tion. 



"That is the whole case. Usage makes na- 

 tional law, usage makes public law ; that estab- 

 lishes in what subjects property exists, and es- 

 tablishes what is legitimate trade among the 

 nations of the earth. This opinion so decides, 

 and it decides that when usage has established 

 these principles they cannot be abolished or 

 varied or modified, except by legislative enact- 

 ment. 



It arises from long-recognized rights, countervened 

 by no legislative action. This is the source of many 

 of the principles of the common law. And this for a 

 century or more may constitute slavery, though it be 



opposed as it is to all the principles of the common law 

 of England. I speak of African slavery. 



" The same opinion continues : 



But such a law can only acquire potency by long 

 usage. Now, it may be admitted that in some of the 

 Southern States, perhaps in all of them, there cannot 

 be found a statute which contains the words: "And 

 be it enacted, that slavery shall exist." 



" That is a historical and a legal fact. So far 

 as I know or have read and I admit that my 

 reading has been very limited compared with 

 that of the learned gentleman from Massachu- 

 setts there is not a positive written law in any 

 of the States of Europe that ever indulged in 

 this traffic, sanctioning and legalizing it. That 

 law which most directly comes up to the point 

 of establishing the slave trade is found in the 

 Constitution of the United States which per- 

 mitted its continuance until 1808, and that at 

 the instance of Massachusetts and other North- 

 ern States. They were sustained in that action 

 by Georgia, South Carolina, and North Carolina ; 

 Virginia, Pennsylvania, and New Jersey went 

 for the immediate abolition of the slave trade, 

 and it would have been abolished at the time 

 of the adoption of the Constitution by a provis- 

 ion to take immediate effect, if it had not been 

 for the resistance and the opposition made to it 

 by South Carolina, North Carolina, and Geor- 

 gia, and Massachusetts and Connecticut and 

 some of the other Northern States. Judge 

 McLean in this decision says : 



Now, it may be admitted that, in some of the South- 

 ern States, perhaps in all of them, there cannot be 

 found a statute which contains the words : " And be it 

 enacted that slavery shall exist;" and this was what 

 was denied in the Senate. But this does not shake the 

 decision of the Supreme Court above referred to. 

 Usage of great antiquity acquires the force of law. The 

 denial therefore that slavery existed by virtue of an 

 express law, or by statute law, which was intended to 

 be denied, was no denial at all. 



' ; That is what Judge McLean decided. It 

 was a case of this character : a slave had eloped 

 from the State of Kentucky ; there were certain 

 citizens of the State of Ohio who gave aid to 

 that slave in making his escape to Canada ; they 

 Avere sued under the law of Congress for giving 

 that aid, and they were held to pay damages 

 for having aided the slave to escape. The 

 counsel for the defence assumed as one of the 

 grounds of defence that there was no positive 

 law, no statute enacted in Kentucky, at least 

 none shown upon the trial, which established 

 slavery. Judge McLean conceded that to be 

 the fact ; but instead of that being a denial that 

 the right of property existed in the claimant, 

 he expressly stated in words that it was no de- 

 nial at all. In the case of Jones TS. Vanzandt 

 (2 McLean, 602) the same learned judge said: 



In our colonial governments, and under the confed- 

 eration, no general provision existed for the surrender 

 of slaves. From our earliest history, it appears that 

 slavery existed in all the colonies. 



"How did it exist in all the colonies? Not 

 by positive enactment, not by any positive law ; 

 it existed only by public, national law, based 

 upon the usage of the civilized world, and the 



