The Southern Literary Messenger, Volume I., 1834-35

Remarks on a Note to Blackstone's Commentaries, Vol. I, Page 423.

MR. WHITE,—I have read the Note on a passage in Blackstone's Commentaries, which you gave us in your last, with some surprise. I had supposed before, that no gentleman of any intelligence could be found within the four corners of our state, who would seriously undertake to maintain that our domestic slavery, which is obviously the mere creature of our own positive law, is so right and proper in itself, that we are under no obligation whatever to do any thing to remove, or lessen it, as soon as we can. I had thought, indeed, that it was a point conceded on all hands, that, wrong in its origin and principle, it was to be justified, or rather excused, only by the stern necessity which had imposed it upon us without our consent, and which still prevented us from throwing it off at once, without a degree of danger which we could not properly encounter. And, at any rate, I had imagined that all of us were fully satisfied, by this time, that it was an evil of such injurious influence upon our moral, political, and civil interests, that we owed it to ourselves as well as to our subjects, to reduce, and remove it, as soon, and as fast as possible, consistently with the rights which we had created or sanctioned by our laws; and with other considerations which we were bound to regard. In all this, however, it seems, I was reckoning without my host, the author of the article before me, who has come forward, at this late hour, to assert the absolute rectitude and utility of the system, with all the power of his pen. I do not, however, by any means, feel disposed to question his perfect right to do so, or to deny for a moment the ingenuity with which he has labored to maintain his novel position. On the contrary, I freely acknowledge both; but believing at the same time, as I do, that his reasonings are false in their principle, and pernicious in their tendency, I must beg leave to follow his annotations with a few remarks.

And first, the Annotator, after declaring that he has been impelled to defend our domestic slavery "by a pious reverence for the institutions of our forefathers," (a very honorable motive; but strangely misapplied,) proceeds to say: "It is hardly necessary to expose the sophistry by which Mr. Blackstone affects to prove that slavery cannot have had a lawful origin. We do not pretend to trace our title to its source. We have no call to sit in judgment between the conquered African and his conqueror. We rest our defence on principles which legitimate our title, whatever its origin may have been. Yet it may not be amiss to say a few words to show the fallacy of those plausible and imposing dogmas, with which we too often suffer ourselves to be talked down." Now I have always regarded the reasoning of Blackstone on this point as absolutely unanswerable; and I am happy to know that I am not alone in my opinion of its weight; for the late venerable Judge Tucker, I see, in his note upon the same passage, (which I commend to all your readers,) after quoting it at length, adds these words: "Thus by the most clear, manly, and convincing reasoning, does this excellent author refute every claim, upon which the practice of slavery is founded, or by which it has been supposed to be justified, at least, in modern times." I will not, however, too hastily conclude against the Annotator's objections; but endeavor to weigh them with due care. He proceeds thus: "Slavery," says Mr. Blackstone, "cannot originate in compact, because the transaction excludes the idea of an equivalent." This is the substance of Blackstone's argument on this head; but does not give us a full idea of its force. His own statement of it is as follows: "But secondly, it is said that slavery may begin 'jure civili' when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very just; but when applied to strict slavery, in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer; but what equivalent can be given for life and liberty, both of which (in absolute slavery) are held to be in the master's disposal? His property also, the very price he seems to receive, devolves ipso facto to his master, the instant he becomes his slave. In this case, therefore, the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded?" Now this seems to me to be pretty good logic; and how then does the Annotator answer it? Why he says: "For an answer to this specious fallacy, I shall content myself by referring you to the masterly essay of Professor Dew, who has so clearly exposed it as to leave me nothing to add." This is certainly judicious, and I cannot but commend him for his prudence, at least, in thus turning over the trouble of answering such an argument to another. How this latter gentleman, however, (who must take the compliment cum onere,) can have contrived to expose so clearly "the specious fallacy" which, it seems, lurks in it, I confess I cannot imagine; as I have not his "masterly essay" before me. No doubt his exposure must be clever; but, with all due respect for him, it is plainly impossible that it can be sound. As at present advised, therefore, I shall stick to Blackstone, or rather to his reasoning, which, as far as I can see, no human wit can ever refute.

But the Annotator takes upon himself to grapple with another argument of Blackstone, which he states in these words: "The commentator further tells us that slavery cannot lawfully originate in conquest, as a commutation for the right to kill; because this right rests on necessity, and this necessity plainly does not exist, because the victor does not kill his adversary, but makes him captive." Now this, too, I have heretofore taken for very sound logic; and why is it not perfectly so? Why because, says the Annotator, the conqueror may be in such a situation that he can only secure himself against the future hostility of his conquered enemy, by killing, or by enslaving him; and if he may enslave him himself, then he may hand him over to another to deport him; which is the mildest mode of doing the thing. Of course, "the mere captivity of his enemy does not imply the security of the captor, should he allow his prisoner to go free." And he illustrates his argument on this point, very prettily, by a figure. "The snared tiger is in your power. You may kill—you may cage him. Therefore, says Mr. Blackstone, you are under no necessity to do either, and the noble beast has a fair claim to his liberty." This is a dexterous turn; but unluckily it proceeds upon a misconception of the true point of Blackstone's argument, which the Annotator ought to have perceived is itself an answer to another. The commentator, observe, is answering the argument of Justinian, that slavery may arise "jure gentium," from a state of war; that is, from the right of a captor to kill his enemy taken prisoner in battle. "But it is an untrue position," says he, "when taken generally, that by the law of nature or nations, a man may kill his enemy; he has only a right to kill him in particular cases, in cases of absolute necessity for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner." Now the answer is obviously complete, so far as regards the point to which it applies. But, says the Annotator, it does not settle the question. Perhaps not; nor does Blackstone say that it does; but it settles the argument of Justinian; and that is all that, considered as an answer, it was intended, or could be fairly required, to do.

But why does it not even settle the question? Why, because, says the Annotator, the conqueror has a right to dispose of his captive in such a manner as to protect himself from his future hostility; and if he may not kill, it does not follow that he may not enslave, or transport him, provided it is necessary for his own security, to dispose of him in that way. Very true; but this is new matter, which demands perhaps a new answer; but does not at all invalidate the former answer to the former argument. And with regard to this new matter too, Blackstone has, in my opinion, very fairly answered it in advance by what he immediately adds, but what the Annotator, (inadvertently no doubt,) has kept back. Thus he adds: "War is itself justifiable only on principles of self-preservation, and, therefore, it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons; much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over." To expand this sentence a little. You may, says Blackstone, by the laws of war, put your enemy hors de combat; but you must do it, by the law of humanity, which is a prior and perpetual part of the same law of nature, with as little suffering to him as possible, consistently with your own safety. You may then, I grant you, take him prisoner, and "confine his person," that is, if you cannot venture to discharge him on his parole; but "only while the war lasts;" for the very foundation of your right to confine him grows out of the war, and vanishes, of course, with the return of peace.

Now it is obvious, I think, that this argument, duly considered, very fairly answers, by anticipation, the new matter which the Annotator has brought into view. For how, I ask, can a temporary right to confine your captive durante bello, become the basis for the transfer of an absolute right to enslave and deport him? Obviously, if I must even grant that you can transfer your right of self-defence, or the powers which it involves, to a neutral, (which I might well question,) you can only transfer it to the extent to which you possess it yourself. But your right over your prisoner of war ceases with your war against the nation, or tribe, to which he belongs. And what right, then, can you have to hand him over to an assignee, who you know will continue his dominion over him, (and over his children after him,) without putting it in your power again to restore him, as in duty bound, upon the cessation of hostilities, to his family and friends? Or what right can your assignee have to hold the prisoner under your assignment, one moment after your right itself has run out? Obviously, none at all. A holds a slave, who is to serve for the life of B, but to be free afterwards, and sells him to C in fee simple; what right has C to hold him after the death of B? Clearly none at all.

There is no escaping from the force of this argument, as far as I can see, but by maintaining, (as the Annotator indeed seems disposed to do,) that barbarians can have no peace with each other; but that war among them must be waged ad internecionem, to the point of mutual extermination, or something equivalent. But this notion is plainly more barbarous than the practice of the most barbarous tribes that we have ever read, or heard of; for there is not one of them that does not make peace, after its fashion; (or did not at least, before our European slavers taught them a different lesson,) and the act of making peace obviously implies that there can be, and is, a reasonable security against future hostilities, without the destruction of either party. And there is no tribe on earth, I suppose, (or was not before the slave-trade began,) so absolutely and desperately barbarous as to insist upon holding its captives after the war is over, and the treaty of peace fairly ratified by a smoking match, or a dance upon the green.

But the Annotator may yet say, (and does in fact,) that granting all this, the captor may have been in the dilemma which he has supposed, during the war; that is, he may have been obliged to kill or sell his captives immediately, to save himself; and he puts a case to illustrate his argument on this point. "When Colonel Campbell, at the head of a few militia, stooped from the mountains of Virginia on Carolina, and bore off the corps of Colonel Ferguson in his pounces, had he been pursued and overtaken by Tarleton, he must have killed his prisoners. He could not have held them, and to have enlarged them would have been to sacrifice the lives of thousands. If, then, he had had no place of refuge, he might have handed them over to any custody, civilized or savage, in which they might have been removed from the theatre of the war." But this case is obviously an imaginary one; and such as could hardly have occurred in fact. It is remarkable indeed that the Annotator could find no example in all the romance of real life to suit the exigence of his argument; but was compelled to fabricate one for the purpose; or at least to piece out an actual occurrence, by a supplemental supposition or two of his own; and even then could not make it serve his turn. Thus Colonel Campbell was not "pursued and overtaken by Tarleton," and, if he had been, would evidently have had to fight or surrender, and could have had no time to think about the supposed alternative of killing his prisoners, or handing them over to a third party, even if one had been there to receive them. And if you vary the case a little, so as to make him pursued, but not overtaken; the time that you will thus give him to hand over his prisoners to others, will equally suffice to enable him to escape with them himself. Or if you give him time enough to hand them over; but not enough to escape with them, (a point of nicety that is hardly conceivable,) then you also allow the pursuing enemy time enough, in all probability, to come up and recapture them from their new holders; the very thing to be avoided. The case, therefore, is evidently altogether fanciful, and proves nothing. At all events, it is quite clear that such a nodus as it indicates could not have occurred in any single instance of the sale of captives for slaves, by any African chief, to the master of a Spanish ship. At least, it is quite fair to say that, in general, the mere fact of the captor's having sold his captive, even during the war, must be prima facie, if not conclusive evidence, that he could not have been in the dilemma imagined, of being obliged to kill, or to enslave him; for it must be obvious that if he had him so completely in his power as to be able to bargain, sell, and deliver him to the slaver, and to receive his money or goods stipulated for him in return; he could not have been very closely pursued by any barbarous Tarleton in his rear at the time, and could not have been under any pressing necessity to do either the one thing, or the other; but, for aught that appears, might have disposed of his prisoner in some more humane manner. The onus probandi, then, or burden of proof, to show that in point of fact the captor and vender of any African slave, was, in any case whatever, in the precise predicament supposed, must be on the Annotator; and can he bear it? Hardly, I suppose. But of what avail, then, can it be to his argument, that he can imagine or invent a case, (or a hundred cases, if he likes,) in which there might have been a lawful origin of slavery, when he evidently cannot show that any thing like it has ever occurred in fact, from the first beginning of the slave trade down to the present time?

Thus it appears that the reasoning of Blackstone to prove the unlawfulness of slavery in its origin, is as strong as we have always thought it; and very easily defends itself against all that any ingenuity can urge against it. But say that it is not so; and grant, if you please, for the sake of argument, that it is all "a specious fallacy" indeed; what then? Does it follow that slavery as it exists in our state, was just and lawful in its origin? By no means. For say that Mr. Dew has by some miraculous effort of intellect, very clearly established, in the face of Blackstone's demonstration, (and in the face of our Bill of Rights also,) that a man can sell himself; can it be shown that, in point of fact, any single one of the slaves who were imported into our colony from the year 1620 to the revolution, had actually sold himself to any one who claimed to be his owner? And say, also, that the Annotator has proved, against the unanswerable argument of his author, (and against the plainest principles of the law of nature,) that a conqueror may justly enslave and export his prisoner of war in any imaginable case whatever, can it be made to appear that any one of the Africans brought to our shore was really captured, and sold, in such a state of things? On the contrary, we have unhappily the most ample evidence from history, that the whole of our exotic slaves were either stolen from their native woods, and brought away against their will, or under false and fraudulent promises which were never performed; or bought for swords and rum, (fit price for such articles!) from those who had captured them, not in just and necessary wars of self-defence, but in predatory hostilities, excited and fomented for the very purpose, by the worst of pirates, the foulest and most deadly enemies of the human race.

But passing from this "grave sophistry," as he calls it, of Blackstone, the Annotator now comes to the consideration of those "principles" on which he chooses to rest his defence of slavery, and "which," he says, "legitimate our title, whatever its origin may have been." But can any principles, I ask, do this? If slavery, as we have seen, is clearly wrong in its origin; that is, if it is, in itself, a violation of the law of nature, can any thing "legitimate" it; that is, make it lawful; by that law? Is not the law of nature, like its author, immutable, and eternal? And must not that, then, which is against this law in one age, be equally against it in another, and in every succeeding age, to the end of time? And if slavery, then, was unlawful in its origin, must it not be so now, and continue to be so forever? Or, can the mere lapse of time make it lawful? But that cannot alter the nature of things. Indeed I may remind the Annotator, that our municipal law even, while it legalizes slavery, does not allow any length of time to bar a claim to freedom; and much less, then, can the law of nature, which has no statute of limitations in its code.

But waiving this, let us see, for a moment, what these principles are which the Annotator supposes may "legitimate our title, whatever its origin may have been." What are they? Why, if I understand his view of the subject, (though it is not, I think, very clearly conveyed,) it is substantially this. By the decree of God, who has said, that "man shall eat of the fruit of the earth by the sweat of his face," there must always be a working class of men, in every country, who must be satisfied to labor for their victuals and clothes; that being the natural and impassable stint of their wages. It makes no manner of odds, therefore, whether the members of this working class be free or slave: if they are fed and clothed, it is all that they have a right to expect, or any reason to demand. In point of fact, indeed, the slave of this class is perhaps rather better off than the freeman; since he is usually better fed and better clothed; and if he has no hope of any thing better, he has no fear of any thing worse; and, upon the whole, has a pretty considerable balance of comfort on his side. It follows from all this, that his master may, very legitimately, hold him down as a slave, ad indefinitum, (that is, till slavery "runs out" of itself, as he thinks it may in time,) without feeling any qualm of conscience in the case, or giving himself any trouble whatever about the matter.

Now all this is doubtless very pretty, and very imposing! It has, however, I acknowledge, some small mixture of truth in it; and if it were offered merely by way of apology for our slavery, and as a set-off against the gross caricatures of it which are sometimes drawn by the ultras of the other side, and especially by our northern abolitionists, I should hardly choose to criticise it too nicely. Indeed I am happy to believe myself, that bad as the system unquestionably is, it is yet not without some alleviating concomitants, which materially soften its natural horrors, and may properly serve to make us endure it with more patience, while we must. But if the Annotator intends to go further than this, and to prove by these remarks, (as I understand him to do,) that it is right and lawful; then I must protest against the reasoning as utterly vain and irrelevant. For, granting all his premises, (though there are certainly some rather strange and startling propositions among them; yet granting them all for the sake of argument,) I really cannot perceive how the conclusion follows from them. For if I grant that there must be a working class, does it follow that we have a right to determine by compulsion, or by positive law, who shall compose that class? The decree of Divine Providence, as quoted by the Annotator himself, is that "man," (that is, that all men,) shall work for his bread. What right, then, has any one portion, or set of men, to slip their own necks out of "the brazen collar," (as he calls it,) of toil; and fasten it immoveably and inexorably upon another? Is not this at once evading and altering, as it were, the counsel of the Creator of all? And if I grant, also, that the slave is happier than the free laborer, does it follow that his master may lawfully hold him as such? Does the question of right depend simply, or at all, upon the degree of happiness which the laborer enjoys? And have I, then, a right to make any man work for me, according to my will and pleasure, provided I take care to feed and clothe him well, and make him as happy as any laborer can expect to be? Would the Annotator think it exactly right to have such a principle carried home to himself? But he would perhaps say, that I must not take quite so great a range as that, but be satisfied to take my man from "the working class." But who compose this working class? All those, I presume, who have been reduced by the various misfortunes of human life, to the hard necessity of laboring for others, for their daily bread. But would any one of this class consent to have the principle of compulsion brought to bear against him, and surrender forever all hope and chance of "escaping to the upper air" of a higher class? Certainly not. Then I must yet further take care, I suppose, to see that my man whom I am to force to labor for me, on the Annotator's principle, shall be black. So the question of right turns at last upon the color of the skin. Admirable logic indeed!

But the Annotator thinks that he has found something like an argument to prove the lawfulness of our slavery, in the text of his author, who happens to say (on another point,) that, "by the law of England, all single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service in husbandry, or certain specified trades." "This," says he, "is as much as to say, they who can only live by labor shall be made to labor. What more do we? They compel him to choose a master. We appropriate his labor to a master to whom use and a common interest attach him, and who is generally the master of his choice. The wages of both are the same"—to wit, victuals and clothes. And he adds afterwards, "It is here; on this very point, of the necessity of forcing those to labor who are unable to live honestly without labor, that we base the defence of our system." This is pleasant indeed; but does not the Annotator perceive that he has entirely mistaken the principle of the English law, which is not, as he states it, that "they who can only live by labor shall be made to labor;" but that those who can only live by labor, and yet will not labor for themselves, and are, therefore, likely to become chargeable to the parish, shall be made to labor for a time, and for wages, until they have learned, in this way, to work freely and willingly, for their own support. But, according to this principle, it is easy to see that hundreds and thousands of our slaves would be entitled to their freedom at once; for it cannot be pretended that many of them at least would not be both able and willing to labor for themselves; and if all, or the larger part of them, would not, it can only be because their very slavery itself has incapacitated them for voluntary toil. But can we, then, plead a defect of theirs which is the consequence of our own act, to justify that act, in this way? Surely this ground of defence must be abandoned at once, as wholly untenable, and even dangerous in the highest degree. At any rate, there is no reason to charge the English law with countenancing our system. The English law says that a freeman who can, and will not, work to support himself shall be made to do so; in order that others may not be called upon to support him. Our law says that all slaves shall be made to work for their masters, whether they are able and willing to support themselves, or not. Is the principle of both laws the same, or entirely different?

But the Annotator finds an excellent reason why our mode of compelling all slaves to work, should even be preferred to the English one of compelling freemen to do so in particular cases; and it is curious enough. I must give it in his own words: "That such compulsion," says he, "is often necessary, all reason and experience prove. But to a people jealous of freedom, it is a delicate question whether such a power can be safely trusted to the municipal authority. To make it effectual it must be a power dangerous to liberty. It could never be carried into effect but by a degree of rigor which must bow the spirit of the laborer, and effectually disqualify him for the political functions of a sovereign citizen." This is truly excellent. So, then, it would be dangerous to our liberty to have such a law as that of England which allows, in certain cases, a freeman who is likely to become a freebooter, or at least a hanger-on upon the community, to be compelled to work for himself; and not at all dangerous to that same liberty to compel one half of our population to work for the other! It would, forsooth, "bow the spirit of the laborer," (as if the vagabond had any spirit to bow,) and "disqualify him for the political functions of a sovereign citizen;" and so to prevent that occasional disqualification of a few, we must systematically disqualify hundreds and thousands from performing those same functions of freemen, which are so important and interesting to the whole body politic! A notable expedient indeed to preserve the purity and lustre of our liberty, from all possible danger of destruction or decay!

Upon the whole, I must say that, in my judgment, the Annotator has failed entirely either to invalidate Blackstone's argument against the lawfulness of slavery in its origin, or to advance any principles whatever which can legitimate it, as it exists in our state, at the present time. I must not, however, by any means, be understood as meaning to convey the idea that I consider it as altogether indefensible before the tribunal of an impartial world. On the contrary, I still hold, as I have always done, that under the peculiar circumstances in which we find it amongst us, it is justifiable, or rather excusable, upon the soundest principles of the law of nature; and, more particularly, upon the principle of necessity and self-defence. By the law of nature, I may take away the life of another when I cannot otherwise defend my own. Of course, I may take away his liberty in a like case; and, a fortiori, I may continue my custody of his person, when he has been committed to my charge, however wrongfully, by one in whose act I had no participation; and when I cannot release him without hazarding my own safety, and his too. To apply this principle to the subject before us; our fathers have fastened this enormous evil upon us in the beginning without our concurrence or consent; and we now find and feel it to be too great and complicated for us to think of removing it at once. To emancipate our slaves on the spot, would indeed, in all human probability, be followed by the ruin of both parties; and would at least be an experiment too tremendous in its aspect, and too uncertain in its issue, to be rashly tried. In this state of things, therefore, we may, I conceive, most rightfully and properly, continue to hold them, as we would hold prisoners of war, whose persons, we have seen, we may lawfully confine while it is necessary for us to do so in order to protect ourselves from their hostilities; but whom, at the same time, we must sincerely and earnestly desire to liberate, and send back to their own country, as soon as we can.

A VIRGINIAN.

The Western Monthly Magazine concurs with us in our opinions of Vathek. The editor says, "Vathek is the production of a sensual and perverted mind. The events are extravagant, the sentiments pernicious, and the moral bad. It has nothing to recommend it but ease of style and copiousness of language."

For the Southern Literary Messenger.