The national era. [volume] (Washington [D.C.]) 1847-1860, 1854-09-07
rcopYR1aHr SECURED BY THE AUTHOR.l
For tho National Era.
THE LEGAL TENURE OF SLAVERY.
LETTER XVIII.

TESTIMONY OF SOUTHERN STATESMEN, OF
THE U. S. SENATE, AND THE FEDERAL
COURTS.
To the Friends of Am.TieGn Liberty:
Slaveholding statesmen, as well as jurists,
are we'll aware of the fact that there exists in
this country no local, municipal, positive law,
creating the relation Of Slavery. The con-
seriousness of this fact may account, as nothing
else can, for their extreme sensitiveness On the
subject, and their determination to suppress
the discussion of it, especially to prevent any
legal scrutiny of that topic before the Courts.
The legality of Slavery, it seems, is to be as
sumed as q selfevident axiom, not to be ques
toned nor examined, as other legal questions
are examined, lest the startling development
of It's iIlegality should be the result. This
am aware is O strong statement; but the proof
of it will be found equally strong. The pecu-
liarly strocious and unconstitutional features
of the Fugitive Slave Bill of 1850 owe their
origin to this cause This will be seen by the
proceedings in the Senate Of the United States,
while the bill was under discussion.
Mr.. Dayton moved an amendment to the
bill, providing for trial by jury, in cases in
which arrests were made and services were
claimed
MIR. Mason of Virginia objected. "A trial
by jury" said he, necessarily carries with it
trial of the whole right. and TRIAL OF
THE RIGHT TO SERVICE will be gone
into, according 10 all the forms of the Court
in determining upon any other fact"
Then, again, it is proposed, as o part of the
proof to be adduced at the hearing, after the
fugitive has been recaptured, that eUidsnce shall
be brought by The claimant to shoU that SLA-
VERY is ESTABLISHED in the State from
l0hence the fugitive has abScOnded. Now, this
very thing, in a recent case in the city Of Nsw
York, was required by one of the Judges of
that State, which case attracted the attention
of the authorities of Maryland, and against
which they protested" &c. n ain that
csse the State Judge went 90 far as to say,
that the only mode Of proving it was by ref
erence to the statute book. Such proof is re-
quired in the Senator's amendment; and il
he means, by this, that proof shall be brought
| that SLAVERY is ESTABLISHED BY EX-
| ISTING LAWS, 1t is impossible 10 comply NTH
| the reguisition, for NO SUCH LAW CAN BE
! PRODUCED, / Gpprehend in ANY OF THE
| SLAVE STATES. an not duGre that there
is q SINGLE STATE an tohicb the institution
is established by POSITIVE LAW. On for
mer occasion, and On different topic, it wa
my duty to attempt TO show 10 the Senate that
no such law was necessary to its establish
nent; CERTAINLY NONE COULD RE
| FOUND, and mono was required, in any Of the
States of this Union" Mr. Mason enlarged
on the topic, and said distinctly that be was
not willing so trust the question with the
Courts in the free States*
The former occasion referred to By MIR
Mason, was the discussion concerning Slavery
in the Territories in which Mr. Mason las be
here quotes himself contended that no direct
legislation establishing Slavery in tie Terri.
tories would be requisite to its existence, any
more than it had been in the States Mr.
Bayly, of Virginia, in the United Sietes House
Of Representatives, took the sane ground
in letter to his constituents, assuming that
Slavery existed in the States not bv positiye
municipal law, of which there were no traces
to be found, but by common lGlcI When we
remember that the Courts in the Stare States
have, with singular uraninityt held that Sla.
very can only exist through municipal regu!a.
tions" or positive law" we cannot wonder
that Mr.. Mason dared not trust the CouIts il
the free States 20 decide otherwise
The speech of Mr.. Mason w&s successful
The amendment proposed Mr.. Dayton was re-
jected, and that essential safeguard of liberty
the right of trial by jury, was deliberately
cloven down, lest its use should lead to deci
sion against the legality Of American Slavery
In these remarkable proceedings, a number
Of things are to be noticed:
|; /. MIR. Mason's admission that the trial By
jury would carry with it the trial Of thC
whole right" including "a trial Of the righ
to service"
2. That this course would be according tC
the forms observed by the Courts, in deter.
mining upon Gny other fact"
3 That the process Of such an iruuiry
would naturally lead to On examination Of thu
statutes of the slave States, in search after The
legal establishment Of Slavery.
4. That no such statutes can be found; anC
that in mono Of the States is Slavery estab
lished by positive law.
5. That, therefore in the view of Mr. Ms
son, it can rest only on common law.
6. That, Notwithstanding this opinion of Mr.
Mason, he was unwilling to trast the question
with the Courts in the free States. He nigh
have added, tho Federal Courts; since thes,
have in charge the cot Of Congress then IN
der discussion.
L. That the authorities of Maryland" hst
, previously protested against apy such judicia
scrutiny of the legal tenure of Slavery.
, 8. That the Senate of the United States
with all these facts and considerations dis
tlnctly and clearly before them, and becaus
} they were, deliberately sustained Mr. Mason
and refused to adopt the proposed amendment
} OF MIR. Dayton, for giving alleged fugitiVes
jury trial, lest the result should be a iudicio
decision against the legality Of Slavery.
| have right then, to claim Mr. Mason
, Mr.. Bayly, "the authorities Of MARYLAND,
and the Senate of the United States, not oni,
as witnesses that there is no positive law es
tabishing Slavery in any Of these States, Blu
f also as authorities confirming my position, tina
the absence of such positive law is crcum
stance that bears heavily on the claim of le
CALLED Slavery, insOmuch that if the form
of the Court in determining upon any otAs
fact" were permitted to be preserved, there i
reason to apprehend judicial affirming tina
e Slavery is illegal.
! Senator Douglas, in his speech on the Nc
braska bill, January 30, 1854, confirmed th
. Vide Washington Union, August, 1850.
!, Since the speech Of Mr. Mason, there has becl
believe, ors judicisl decision in accordance wiz
5 his views.