342 



CONGRESS, U. S. 



engaging in the slave trade of the whole civilized 

 world. That is the origin and foundation of the 

 slave trade ; that is the origin and foundation of 

 the property of the owner of a slave to that slave ; 

 and Judge McLean decided in this case that, for 

 the defence to assume that there was no statute, 

 no positive law giving to the claimant of a slave 

 a right of property in the slave, was no denial 

 whatever of his right of property. In the case 

 I last referred to Jones vs. Vanzandt Judge 

 McLean said : 



From our earliest history it appears that slavery ex- 

 isted in all the colonies ; at the adoption of the Federal 

 Constitution it was tolerated in most of the States. 



Property, real or personal, takes its designation from 

 the laws of the States. It was not the object of the 

 Federal Government to regulate property. A Federal 

 Government was organized by conferring on it certain 

 delegated powers, and by imposing certain restrictions 

 on the States. Among these restrictions it is provided 

 that no State shall impair the obligation of the contract, 

 nor liberate a person who is held to labor in another 

 State from which he escaped. In this form the Con- 

 stitution protects contracts and the right of the master, 

 but it originates neither. 



" There is a decision in which the right of 

 the master to his slave is expressly recognized, 

 and it is recognized to the form and extent of 

 giving a judgment for a large sum of money 

 against a citizen of Ohio who had aided a slave 

 to make his escape ; and yet the honorable Sen- 

 ator from New Hampshire and the honorable 

 Senator from Maine assume that there can be 

 no property in slaves. 



" Well, sir, I have got some more law upon 

 that subject. We are all familiar with the pro- 

 vision of the Constitution that authorized the 

 reclamation of fugitive slaves from the States. 

 We are familiar with the provision that es- 

 tablishes the ratio of representation on the basis 

 of three fifths of the slaves, including all the 

 white population and the free population. We 

 are all familiar with the provision that bases 

 direct taxation on the same basis of population. 

 We are all familiar with the provision that 

 continued the slave trade up to 1808. What 

 did Congress do ? In 1793 it passed a fugitive 

 slave law to authorize the owners of slaves to 

 reclaim them. That law was decided by the 

 Supreme Court to be constitutional. Now, 

 sir, if property cannot exist in a slave when a 

 slave escaped from the State of Kentucky and 

 went to Ohio, a Free State, what principle of 

 law, or of reason, or of common sense would 

 authorize the courts of the country to render a 

 judgment in favor of the claimant, the owner 

 of that slave, who pursued him into the State, 

 'against a man who aided in his escape ? In 

 1850 another and a more efficient fugitive slave 

 law was passed. The constitutionality of the 

 previous fugitive slave law of 1793 came up in 

 the case of Prigg against the State of Pennsyl- 

 vania, in which the opinion of the court was 

 rendered by Justice Story, and the other judges 

 gave their opinions seriatim. Every judge of 

 the Supreme Court decided that law to be con- 

 stitutional. It would be absurd and nonsensi- 



cal for the court to decide that a law is consti- 

 tutional for pursuing a subject of property in a 

 State in which subject the right of property 

 cannot possibly exist ! I will read a clause 

 from that decision. The provision of the Con- 

 stitution is in these w&rds : 



No person held to service or labor in one State under 

 the laws thereof, escaping into another, shall, in con- 

 sequence of any law or regulation therein, be dis- 

 charged from such service or labor, but shall be deliv- 

 ered up on claim of the party to whom such service or 

 labor may be due. 



" I admit that the Legislatures may regulate 

 the property of the owner of a slave in the 

 slave. I admit that the Constitution treats 

 slaves as person's as well as property ; that it is 

 murder, in my State, to kill a slave ; that if a 

 slave is treated with inhumanity, the laws pro- 

 vide a mode by which the slave may be taken 

 from the inhuman owner and sold ; but the 

 law may make the same provisions in regard to 

 horses and stock. If horses are treated with 

 cruelty and brutality by the owners, the Legis- 

 latures of the State in which such owners live 

 may regulate the usage which the owner may 

 make of his horse, and compel him to observe 

 the laws of humanity and mercy in the use 

 even of a dumb beast, as well as of a slave. 

 That only proves that the law makes different 

 regulations in relation to different subjects of 

 property, according to their nature. The law 

 may regulate the use which the owner of real 

 estate may make of his real estate in towns, and 

 does. He cannot establish a potter's field upon 

 his lot ; he cannot, I believe, in my State, treat 

 his beasts, horses at least, with barbarity. If 

 he does, he is subject to a penal law that fines 

 him. He cannot murder his slave. He holds 

 possession of the slave, and has the right to the 

 service of the slave, and that is all the property 

 that could exist practically in a slave. A man 

 cannot kill a slave, and barbecue him, and eat 

 him. He would not be disposed to do that. 

 These laws do not interfere with the just use of 

 slave property at all. They permit to the 

 owner of the slave every free and proper use of 

 the slave of which that slave is capable, notwith- 

 standing their object is to preserve the laws of 

 humanity and mercy in the ownership of the 

 slave ; and so of a horse. But because the law 

 makes different regulations in relation to differ- 

 ent species of property, according to the nature 

 and essence of that property, it does not at all 

 prove that the property in all the classes has 

 the same origin. That origin, as I said before, 

 is in universal usage and custom." 



Mr. Howard : " I would ask the gentleman 

 from Kentucky, with his permission, whether 

 all property has its origin in force ? Slavery 

 certainly has." 



Mr. Davis: "Property in a horse has its 

 origin in force. The horse has to be subdued, 

 broken, and reduced to obedience to the laws 

 and usages of his owner ; and so of many other 

 things. There is property in wild beasts, in the 

 lion that once prowled in the forest. In many 



